1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.2964 of 2010 Rakesh Dattatraya Kumbhar & ors. ... Petitioners versus Prabhavati P. Angre ... Respondent ... Mr. V.S.Kapse for the petitioners Mr.K.K. Malpathak for the respondent CORAM : D.G. KARNIK, J. DATED : 25th June 2010 P.C. 1. Heard. 2. By this petition, the petitioners (original defendants) challenges the order dated 19 March 2010 passed by Civil Judge, Jr. Division, Bhiwandi rejecting their application for amendment of the written statement. 3. The suit was filed in the year 2005. All the petitioners filed the common written statement on 30 August 2005. The trial commenced some time in the year 2008 and plaintiffs evidence was closed on 2 March 2009. The defendants (petitioners) also examined one of them 2 as witness and thereafter made an application for amendment of the written statement. That application has been rejected by the Court on the ground that application for amendment has been made after commencement of the trial. 3. Learned counsel for the petitioner submitted the case falls they fall within the exception to the proviso to Order 6 Rule 17 of the Code of Civil Procedure (for short “the Code”). The proviso to Order 6 Rule 17 of the Code reads thus:- “Provided that no application for amendment shall 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 trial." 4. Application for amendment cannot be allowed by the Court 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 court. Learned counsel for the petitioner submitted that the petitioner no.1 was born in the year 1974 and petitioner no.2 was born in the year 1975 and as such, they did not have any knowledge of the events which were sought to be pleaded by means of an amendment and therefore amendment should have been allowed. The submission cannot be accepted. The petitioners have deliberately not given the age of petitioner nos.3 and 4 ( who are the original defendant nos.3 and 4) in the suit. Petitioner no.3 is the mother of petitioner nos.1 and 2 and ordinarily would be about 20 3 years older than either of them. She was certainly aware of the events which were sought to be added by means of the amendment. It has not been averred that petitioner nos.3 and 4 were not aware of the events which are sought to be added by means of amendment. Therefore, under the guise that one or two of the co-defendants who had filed the joint written statement were aware of the events, all of them cannot apply for amendment of their joint written statement after the trial has commenced. Even otherwise, I am not satisfied that petitioner had not brought on record sufficient material to show that with due diligence they could not have been aware of the events sought to be pleaded by the proposed amendment. They have stated that they came to know of the events only when they issued a witness summons to their uncle. There is no averment in the application for amendment that relations between the petitioner nos.1 and 2 and their uncle are strained and they could not have obtained this information from the uncle earlier. They could have therefore contacted their uncle even earlier, if they had shown due diligence. Petitioner therefore have not shown due diligence to fall within the exception to the proviso to Order 6 Rule 17 of the Code. There is no merit in the writ petition which is hereby rejected summarily. (D.G. KARNIK,J.)