IN THE HIGH COURT OF UTTARAKHAND AT NAINTAL Writ Petition (M/S) No. 63 of 2007 Smt. Beena Devi. ………..Petitioner. Versus Smt. Brijeshwari Pandey & another. …………. Respondents Mr. Lok Pal Singh, Advocate for the petitioner. Mr. Rajendra Dobhal, Advocate with Mr. D.C.S. Rawat, Advocate for the respondents. Hon’ble J.C.S. Rawat, J. Mr. Lok Pal Singh, Advocate for the petitioner. Mr. Rajendra Dobhal, Advocate with Mr. D.C.S. Rawat, Advocate for the respondents. 2. With the consent of the parties, the petition is taken up today for final hearing and disposal. The petition is being disposed of at the motion hearing stage. 3. The present petition has been preferred by the petitioner under Article 226/227 of the Constitution of India for seeking following reliefs: (i) Issue a writ order or direction in the nature of certiorari quashing the impugned orders dated 03.04.2006 and 18.01.2007, contained annexure nos. 5 & 6 to this writ petition passed by the learned Courts below and further be pleased to allow the Amendment Application. (ii) Issue any other relief, which this Hon’ble court may deem fit and proper in the circumstances of the case be passed in favour of the petition. (iii) Cost of the petition be awarded in favour of the petitioner. 4. A suit was filed by the complainant-respondent no. 1 before the trial court for mandatory injunction seeking relief to direct the defendants to open the Chabutara marked as ABCDI in the attached map and further sought perpetual injunction for prohibiting interference in the said Chabutara marked as ABCDI. During the pendency of the said suit, a written statement dated 21.09.1997 was filed by the petitioner denying the plaint’s averments stating therein that there is no Chabutra as stated by the plaintiff, in fact there is a ‘gali’ (pathway) since long for the common use of the residents. Admittedly, the evidence of the plaintiff has been recorded whereas evidence of the defendant is yet to start. 5. The petitioner/defendant moved an application for amendment of the written statement before the trial court on 22nd September, 2005 alleging therein that; that said disputed property is a par of the big gallery or the pathway; the said pathway is surrounded by the houses, as such the residents had a right to have water, light, air etc. in the said pathway; and the said gallery/pathway is also opened for the said use. 6. The amendment was opposed by the plaintiff on the ground tha; final hearing of the case has been initiated; the amendment application was filed after 9 year of the suit whereas the written statement was filed on 21.09.1997; and the present amendment application was filed only to delay the proceedings. The said amendment application moved by the petitioner/defendant was rejected by the trial court on 03.04.2006. 7. Thereafter, the petitioner/defendant preferred a revision before the district judge. The district judge vide its order dated 18.01.2007 dismissed the revision petition on the grounds that; the said amendment application did not contain any ground why it was moved so late; no affidavit has been filed alongwith the amendment application; the said application had been filed after an inordinate delay; and the learned trial court was justified in rejecting the application of the petitioner. 8. The aforesaid orders passed by the courts below have been challenged by the petitioner/defendant by way of this petition. 9. The learned counsel for the petitioner contended that the amendment application was filed by the petitioner with a view to clarify the leadings so that the may lead evidence in said points. He further contended that merely on the ground of delay, the application cannot be rejected. 10. The learned counsel for the respondents refuted the contentions and contended that Order 6 Rule 17 proviso of the C.P.C. has not been complied with in this case and , the petitioner has not stated in his application that in spite of due diligence, he would not raise the matter before the court. 11. I have heard learned counsel for the parties perused the record. Order 6 Rule 17 proviso of the CPC reads as under: “The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spit of due diligence, the party could not have raise the matter before the commencement of trial”. 12. The proviso clearly indicates that if the trial has commenced, unless that comes to the conclusion that inspite of due diligence, the party could not have raised the matter before commencement of the trial. In this case, the trial of the suit has commence and evidence of the plaintiff has already been recorded. The learned counsel for the petitioner/defendant frankly admitted that he has not alleged about due diligence as incorporated in the said proviso. The object of introducing the said proviso is only to curtail the delay in deciding the cases. The amendment application must state that inspite of due diligence, the party could not place the plea before the court concerned. 13. In view of above, I do not find any infirmity in orders passed by the courts below, as such I am not inclined to interfere with the orders passed by the learned trial court as well as by the revisional court. Thus, the petition devoids of merit is dismissed in limine. 14. No order as to costs. (J.C.S. Rawat, J.) 03.03.2009 V.K.