JUDGMENT :

1. Heard learned counsel for the petitioners and Sri Ravi Shanker Pathak, learned counsel for the respondent.

2. Present petition has been filed with following prayer;

“It is, therefore, Most Respectfully prayed that this Hon'ble Court may kindly be pleased to stay the effect and operation of the impugned order dated 11.04.2023 passed by Prescribed Authority/JSCC Agra in P.A. Case No. 42 of 2015, Anwar Uddin and Firoz Uddin (since deceased) and others.”

3. Since only legal question is involved, therefore, with the consent of the parties, without inviting for affidavits, the matter is being decided at the admission stage itself.

4. Learned counsel for the petitioners submitted that P.A. Case No. 42 of 2015 was filed by plaintiff-respondent. As petitioners-defendants had not appeared and trial Court vide order dated 04.01.2017 proceeded ex parte, upon which recall a application was filed, which was rejected vide order dated 03.07.2018. Both orders were challenged before this Court by filing Matters Under Article 227 No. 5779 of 2018, which was disposed of vide order dated 19.12.2022 with direction to the petitioner to deposit the cost of Rs. 1500/-on or before the 10th of January, 2023 and further held that his written statement, which is already on record, will be taken into consideration and he would also file his affidavit of evidence by 10th of January, 2023. He next submitted that in compliance of order dated 19.12.2022, petitioners have deposited Rs. 1500/-on 06.01.2023 and the written statement was also taken on record.

5. He further submitted that after receiving the affidavit of applicant, petitioners have filed application under Order VI Rule 17 CPC for amendment of written statement, which was rejected on the ground that said amendment is already part of written statement and secondly, petitioners-defendants have not given any proper reason as to why the said facts are not incorporated in written statement filed earlier. Petitioners have taken specific ground in their application under Order VI Rule 17 CPC that earlier written statement was filed by Sri R.P. Singh Dhakare, Advocate and after engaging new Advocate, Sri Rajat Kumar Saraswat, petitioners have properly gone through the paper book and suggested for amendment. Therefore, under such facts of the case, it is required on the part of trial Court to allow the amendment.

6. He next submitted that while dealing with amendment in written statement, Court should have been more liberal. In support of his contention, he has placed reliance upon the judgment of Apex Court in the matter of Usha Balashaheb Swami & others Vs. Kiran Appaso Swami & others; 2007 (3) Supreme (SC) 582.

7. Per contra, Sri Ravi Shanker Pathak, learned counsel for the respondent has vehemently opposed the submissions raised by learned counsel for the petitioners and submitted that there is no dispute on the point that while dealing with amendment application in written statement, Court should have been more liberal, but he firmly submitted that while filing application after commencement of trial, it is mandatory requirement to show the efforts so made by the petitioners-defendants and prove that even after due diligence, they were not having knowledge of those facts. Mere change of counsel cannot be a ground to allow the amendment application at a very belated stage and in the present case, even after submission of affidavit of witness by the opposite party filing of amendment application is nothing but dilatory tactics adopted by the petitioners-defendants. In support of his contention, he has placed reliance upon the judgments of this Court in Hari Shanker and 5 others Vs. Bhagwati Prasad Mishra; 2014 0 Supreme (All) 3127, decided on 31.10.2014, Sagwa Singh Tyagi Vs. The Additional District Judge and 6 others; 2014 0 Supreme (All) 3433, decided on 11.11.2014, Hari Narayan v. Shanti Devi; 2019 SCC OnLine All 2380, decided on 28.05.2019, and Matter Under Article 227 No. 2658 of 2023 (Ramesh