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TMI Blog2013 (10) TMI 1479X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the defendant nos. 1 to 5. The written statement was filed by them on 27.07.2007. The issues were framed on 20.01.2012. The affidavit in lieu of examination in chief was filed on 03.05.2012 and the further examination in chief of the plaintiff was recorded on 10.07.2012. The matter was fixed for the cross examination of the plaintiff. It is at this stage the application was filed for amendment of written statement on 06.09.2012. 2. The trial court recorded the finding that the application was filed after the commencement of trial and the perusal of the application reveals that no where there is even a whisper as to how the defendants have failed to raise such plea before the commencement of the trial. It has been held that mere inad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. The said para 17 is as under; 17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a tenant as per the provisions of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi's case (supra) as follows:- As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his statement under Order 6 Rule 17 CPC by taking a contrary stand than was stated originally in the written statement. This is opposed to the settled law open to a defendant to take even contrary stands or contradictory stands, the cause of action is not in any mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendants in making an application for amendment of written statement after the commencement of trial. It was not a case where the question of due diligence was involved. Similarly, in none of the other decisions, the question of 'due diligence' was involved. None of these decisions lay down a ratio that after the commencement of trial, the amendment can be allowed without recording any finding on the question of 'due diligence'. In the decision of this Court in case of Piedade Fernandes vrs. Charlene Leitao, reported in 2012 (1) Mh.L.J. 317, the finding is recorded that the amendment was sought after the commencement of trial incorporating the facts which occurred during the pendency of the suit. In view of this, none ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction either to allow or disallow an amendment in the pleadings after the commencement of the trial. (e) The Court while allowing an amendment must record a finding that in spite of due diligence, the party could not have raised the matter before the commencement of the trial or that the events sought to be brought on record by way of an amendment have occurred subsequent to the commencement of trial. (f) The facts and grounds in the application for amendment must be clearly stated to bring out a case that the delay caused was beyond the control and diligence of the party proposing the amendment. (g) Where a party had acted with due diligence or not, would depend upon the facts and circumstances of the case and no hard and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint. 11. In the light of the aforesaid clear dictum of the Apex Court, I have gone through the pleadings for amendment of the written statement. There is absolutely no case of due diligence made out in the application for amendment. The necessary facts and grounds to demonstrate due diligence are not stated. The facts stated by way of proposed amendment were within the knowledge of the defendants when the original written statement was filed and it is not the case that the events which have been narrated in the proposed am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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