JUDGMENT :

YOGENDRA KUMAR SRIVASTAVA, J.

1. Heard Sri Pankaj Dwivedi, Advocate holding brief of Sri Vijay Shankar Singh, learned counsel for the petitioners and Sri Utpal Chatterji, learned counsel appearing for the legal representatives of the sole respondent (deceased).

2. Counsel for the parties have agreed that the petition may be disposed of at the stage of admission.

3. By means of the present petition filed under Article 226 of the Constitution of India a writ in the nature of certiorari has been sought for quashing the order dated 04.12.2013 passed by the Additional District Judge, Meerut in Civil Appeal No.14 of 2011 whereby the amendment application (Application No.94Ka) has been rejected.

4. The order impugned records that the amendment sought at the stage of appeal would have the effect of changing the very nature of the suit and for the said reason the amendment application has been rejected.

5. Contention of the counsel for the petitioners is that by means of the amendment application a typographical error was sought to be rectified and as such the same ought to have been allowed in the interest of justice.

6. Sri Utpal Chatterji, learned counsel for the legal heirs of the sole respondent submits that the amendment which was being sought at the stage of appeal would change the very nature of the suit and as such the same has rightly been rejected by the court below. Moreover, it is submitted that in view of the proviso to Order XVI, Rule 17 the amendment was not permissible in the absence of the petitioners being able to show that in spite of due diligence they could not have raised the matter before the commencement of trial. Reliance in this regard has been placed on the judgments in the case of M. Revanna Vs. Anjanamma & Ors., 2019 4 SCC 332, Vijay Hathising Shah & Anr. Vs. Gitaben Parshottamdas Mukhi & Ors., 2019 5 SCC 360.

7. It is further submitted that the present petition filed under Article 226 of the Constitution against a judicial order would not be maintainable in view of the law laid down in the case of Radhey Shyam & Anr. Vs. Chhabi Nath & Ors., 2015 5 SCC 423.

8. The rival contentions which fall for consideration relate to the scope of the powers of the Court to allow amendment of pleadings under Order VI Rule 17 of the Civil Procedure Code, 1908 (CPC).

9. The purpose and object of rules relating to pleadings being to decide the real controversy between the parties and not to punish them for their negligence, the provisions relating to the amendment of pleadings are usually to be liberally construed with a view to promoting the ends of justice and not for defeating them, and consequently the courts generally allow all amendments that may be necessary for determining the real question in controversy between the parties.

10. The proviso to Rule 17 under Order VI, as inserted by the Code of Civil Procedure (Amendment) Act, 2002, however, restricts and curtails the power of the court to allow amendment of pleadings by enacting that no application for amendment is to be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial.

11. The proviso to Rule 17, as per the Amendment Act, 2002, has introduced the "due diligence" test, which requires that the court must be satisfied that in spite of "due diligence" the party could not discover the ground pleaded in the amendment. The term "due diligence" has been specifically used so as to provide a test for determining whether to exercise the discretion in situations where amendment is being sought after commencement of the trial.

12. The object of introducing the proviso to Rule 17 was considered in the case of Chander Kanta Bansal Vs. Rajinder Singh Anand, 2008 5 SCC 117 and it was held as follows:-

"11. ...The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if