1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.3578 of 2010 Ms.Anandibai Bhupal Mugdum w/o Bhupal Krishnaji Mugdum(since dec) Ms.Shashikala Ashok Mugdum wd/o Ashok B.Mugdum & ors.... Petitioners versus Mr.Shantaram Bhau Adure & Ors. ... Respondents ... Mr. Suresh Gole for the petitioner. CORAM : D.G. KARNIK, J. DATED : 1st July 2010 P.C. 1. By this petition, the petitioner challenges the judgment and order dated 3 May 2010 passed by the learned Judge of the City Civil Court rejecting the petitioners’ application for amendment of the written statement. 2. In the suit filed by respondent nos.1 and 2, issues were framed in the year 2004 and affidavit in lieu of examination in chief has also been filed. Thereafter, the present petitioner filed an 2 application for amendment of the written statement. That application has been rejected and order of rejection is impugned in this petition. 3. Order 6 Rule 17 of the Code of Civil Procedure was amended in the year 2002 and the proviso has been added thereto which says that no application for amendment shall be allowed after 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. Filing of an affidavit in lieu of examination in chief amounts to the commencement of the trial. In the circumstances, the application for amendment filed in the present case could not have been allowed unless the Court was satisfied that in spite of due diligence, the petitioner could not have raised the matter before the affidavit in lieu of examination in chief was filed by respondent no.1. 4. Learned counsel for the petitioner submitted that talks of settlement were going on between the parties. Application for amendment was not made so as not to frustrate the talks. In my view, this does not amount to due diligence. Due diligence ordinarily means something which the party could not have discovered in spite of the good efforts. Not making the application for amendment deliberately, may be for some reason, does not amount to exercise of due diligence. In the circumstances, the trial court was right in rejecting the application for amendment. 3 5. Learned counsel for the petitioner submitted the grounds given by the trial court for rejection of the amendment are not sustainable. In the light of the views that I have taken that the application was not maintainable by reason of the proviso to Order 16 Rule 17 of the Code of Civil Procedure, it is not necessary to go into the grounds given by the trial Judge. The ultimate conclusion of rejection of the application in my view, cannot be assailed. 6. Writ Petition is accordingly rejected summarily. (D.G. KARNIK,J.)