Judgment :- 1. Defendant Nos.1 & 2 in O.S.No.400/1999 have filed this writ petition aggrieved by the dismissal of their application filed seeking amendment of the written statement. 2. Plaintiff-respondent No.1 has filed the suit in the year 1999 seeking a decree of specific performance of the agreement dated 29.05.1982 among other reliefs with an alternative relief of payment of money along with interest. 3. The petitioners herein have filed their written statement on 23.02.2006. After framing of issues, the matter was set down for trial. The plaintiff led his evidence. During the course of defendants’ evidence, defendant Nos.1 & 2 have come up with the present application on 30.05.2011 seeking amendment of the written statement. 4. By the proposed amendment, defendant Nos.1 & 2 sought to add paragraphs 30(a) to 30(g) in the written statement. Apart from pleading certain other facts the defendants mainly intended to contend that based on the very agreement dated 29.05.1982, plaintiff had filed a suit in O.S.No.1715/1996 against defendant Nos.1 & 2 seeking a decree of permanent injunction. The said suit came to be dismissed as withdrawn without reserving liberty and hence the present suit in O.S.No.400/1999 was hit by Order II Rule 2 CPC. 5. In support of the application, the defendant No.1 filed affidavit for himself and on behalf of defendant No.2 contending that after the evidence of the plaintiff was adduced, it was noticed by his advocate that there was a reference to the earlier suit filed by the plaintiff in O.S.No.1715/1996 and another suit filed by defendant Nos.1 & 2 in O.S.No.274/1996, but no averments to the effect had been made stating that the suit filed by the plaintiff was not maintainable as the same was hit by the provisions of Order II Rule 2 CPC keeping in mind the dismissal of O.S.No.1751/1996 without reserving liberty and therefore it was necessary to file an application seeking amendment of the written statement. This application was resisted. 6. The Court below has dismissed the application holding that as the petitioners did not establish that inspite of due diligence they could not plead the facts sought to be incorporated by way of the proposed amendment in the written statement, the amendment was not permissible in view of the proviso to Order VI Rule 17 CPC. 6. The Court below has dismissed the application holding that as the petitioners did not establish that inspite of due diligence they could not plead the facts sought to be incorporated by way of the proposed amendment in the written statement, the amendment was not permissible in view of the proviso to Order VI Rule 17 CPC. It has also referred to the fact that as per the direction issued by this Court, the suit was required to be disposed of by the end of July, 2011 and therefore, the amendment sought for if granted would result in protraction of the proceedings. The Court below has also held that even in the absence of the proposed amendment, the suit could be effectively and completely decided on merits. 7. Mr. S.P. Shankar, learned Senior Counsel appearing for the petitioners contends that as the suit is filed in the year 1999 and the amendment of the Code of Civil Procedure is brought on 01.07.2002, in the light of Section 16(2)(b) of the Code of Civil Procedure (Amendment Act) 2002 (for short, ‘the Amendment Act’), the amendment brought to Order VI Rule 17 shall not apply to the proceedings instituted before the commencement of Section 7 of the Amendment Act. He further contends that the plea sought to be taken by way of amendment is a legal contention which was absolutely necessary for adjudication of the controversy involved and therefore as held by the Apex Court in the decision in the case of RAJESH KUMAR AGARWAL & OTHERS VS. K.K.MODI & OTHERS- AIR 2006 SC 1647 , the amendment ought to have been allowed. He contends that Order VI Rule 17 consists of two part, wherein the first part is discretionary and leaves it to the court to order amendment and the second part is imperative and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties and it is the real controversy test which is the basic or cardinal test. He has also placed reliance on the judgment of the Apex Court in the case of ANDHRA BANK VS. ABM AMRO BANK AIR 2007 SC 2511 . 8. He has also placed reliance on the judgment of the Apex Court in the case of ANDHRA BANK VS. ABM AMRO BANK AIR 2007 SC 2511 . 8. Contending that the petitioner had a vested right as on the date the suit was instituted as per the existing provisions contained under Order VI Rule 17 CPC to seek amendment of the written statement and that the proviso inserted later cannot have the effect of taking away such a vested right. Learned counsel has placed reliance on the judgment in the case of GARIKAPATI VEERAYA VS N.SUBBAIAH CHOUDHRY & OTHERS- AIR 1957 SC 540 . 9. Mr. Naganand, learned Senior Counsel appearing for respondent No.1-plaintiff contends that as per Section 16(2)(b) of the Amendment Act, the provisions contained under Order VI Rule 17 as amended by the Amendment Act are applicable in respect of any pleading filed before the commencement of Section 16 of the Amendment Act, 1999 and Section 7 of the Amendment Act, 2002. He points out that in the instant case the written statement is filed by the petitioners on 23.02.2006 after the Amendment Act came into force 01.07.2002 and therefore the proviso inserted by the Amendment Act is applicable to the case on hand and hence unless the petitioners showed that inspite of due diligence, they could not raise the matter involved in the amendment before the commencement of trial, the amendment cannot be allowed. He submits that the Court below has rightly rejected the application as there was absolutely no diligence on the part of the defendants in raising such a plea at such a belated stage despite having clear knowledge of the filing of the earlier suit by the plaintiff and its dismissal as withdrawn. He has placed strong reliance on the judgment of the Apex Court in the case of CHANDER KANTA VS RAJINDER SINGH ANAND- (2008) 5 SCC 117 , VIDYA BAI & OTHERS VS PADMALATHA & ANOTHER- (2009) 2 SCC 409 . 10. Having heard the learned Counsel for the parties and on careful consideration of the materials on record, the only question that arises for consideration in this writ petition is, “Whether the court below was justified in dismissing the application filed by the petitioner-defendants seeking amending of the written statement?” 11. 10. Having heard the learned Counsel for the parties and on careful consideration of the materials on record, the only question that arises for consideration in this writ petition is, “Whether the court below was justified in dismissing the application filed by the petitioner-defendants seeking amending of the written statement?” 11. By Section 7 of the Amendment Act 2002, Order VI Rule 17 of CPC is amended by substituting the existing provision with the following: “17. Amendment of pleadings 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 spite of due diligence the party could not have raised the matter before the commencement of trail.” 12. It is clear from the proviso that no application for amendment shall be allowed after the trial has commenced unless the court comes to the conclusion that despite due diligence, the party could not take up the plea before the commencement of trial. The object behind insertion of the proviso and enacting a bar for a party to seek amendment at any stage is apparently to check the delays. Once the trial commences on the known pleas, the parties are required to proceed with their case without casually resorting to amendment of the pleadings, which will necessarily hinder the progress in the case. However, there is no complete bar to seek the amendment. The proviso does not shut out entertaining any later application as an exception is made in cases where it is shown that in spite of due diligence he could not raise the plea before the commencement of the trial. 13. Thus, what is important to be noticed is whether the petitioners/defendants in the instant case have shown that despite exercise of diligence, they could not have raised the plea which is now sought to be raised by way of amendment, before commencement of trial. The court below has found that there was no such diligence and the said essential requirement was not satisfied. 14. The court below has found that there was no such diligence and the said essential requirement was not satisfied. 14. The words ‘due diligence’ have not been defined in the Code. In the case of CHANDER KANTA BANSAL VS RAJINDER SINGH ANAND- (2008) 5 SCC 117 at paragraph 16, the Apex Court had an occasion to examine the meaning of the words ‘due diligence’ used in the proviso. Referring to Oxford Dictionary, it is observed that the word ‘diligence’ means, careful and persistent application or effort. ‘Diligent’ means careful and steady in application to one’s work and duties, showing care and effort. As per Black’s Law Dictionary (18th Edition), ‘diligence’ means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. It is thus stated in the aforementioned judgment of the Apex Court that “due diligence” means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. Reference is made to the Words and Phrases by Drain-Dyspnea (Permanent Edition 13-A) to state that ‘due diligence’, in law, means doing everything reasonable, not everything possible. ‘Due Diligence’ means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. Therefore, the yardstick of a prudent man who would exercise care or caution and the attention that he is required to be given to the set of situation and circumstances has to be applied and if the plea sought to be taken by way of amendment passes this test, in that, the party despite exercising such care, caution, that was reasonably expected of him and that is ordinarily exercised by a prudent person could not take up the plea before the trial commenced, then such plea can be permitted at any stage of the proceedings. 15. In the instant case, as can be seen from the application filed seeking amendment and the proposed amendment sought to be inserted, the factum of the plaintiff having filed an earlier suit in O.S.No.1715/1996 based on the very agreement against the petitioners herein and the State seeking a decree of permanent injunction is sought to be inserted apart from several other contentions relating to the said proceedings and events that took place at that time. As the petitioners herein were parties to the said suit and as the said suit was withdrawn, it cannot be said that they had no knowledge of the proceedings initiated in the said suit and the events narrated in the proposed amendment including the plea of bar of the present suit vide Order II Rule 2 CPC on account of the withdrawal of the suit filed for injunction. The present suit is filed in the year 1999. The written statement was filed on 23.02.2006. Issues were settled long back. Plaintiffs’ evidence was completed. When the evidence of the defendants was to commence, this application is filed. Therefore, as rightly held by the court below, the petitioners failed to establish due diligence for not raising this plea before the trial commenced. 16. As held by the Apex Court in the case of VIDYA BAI & OTHERS VS PADMALATHA & ANOTHER- (2009) 2 SCC 409 (paragraph 19), it is the primal duty of the Court to decide as to whether such an amendment was necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI Rule 17 CPC restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court’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. In the said case, a suit for specific performance of the contract was filed by the appellant-plaintiff, issues were framed on the basis of pleadings of the parties, affidavits were filed regarding evidence and dates were fixed for cross-examination. Thereafter, the respondent-defendant filed applications seeking amendment of the written statement and for production of additional documents. The High Court by the order impugned therein had allowed the writ petition partly allowing the applications. In that background, the Apex Court has laid down the law as stated above. 17. In the instant case, the Trial Court has held that the petitioners have not satisfied the requirement of due diligence as contained in the proviso. It cannot be said that this finding suffers from apparent illegality, error of law or error of jurisdiction. 18. However, a contention is urged by the learned Senior Counsel Mr. 17. In the instant case, the Trial Court has held that the petitioners have not satisfied the requirement of due diligence as contained in the proviso. It cannot be said that this finding suffers from apparent illegality, error of law or error of jurisdiction. 18. However, a contention is urged by the learned Senior Counsel Mr. S.P. Shankar contending that as per Section 16(2)(b) of the Amendment Act, the amending provision contained in Order VI Rule 17 CPC as substituted by Section 7 of the Amendment Act, 2002, has no application to the instant case as the suit is filed in the year 1999 before the commencement of the Amendment Act. 19. A careful reading of Section 16(2)(b) of the Amendment Act 2002, makes it clear that what is saved under the said provision is any pleading already filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of the Amendment Act, 2002. The Amendment Acts have come into force on 01.07.2002. The written statement in the present case is filed on 23.02.2006 and therefore, the amendment introduced to Order VI Rule 17 containing the proviso incorporating the requirement of showing due diligence is applicable to the pleading/written statement filed by the petitioners in the instant case. If the written statement had been filed prior to the commencement of the Amendment Act 2002, then the same would have been saved as per Section 16(2)(b) from the operation of the provision as amended. Therefore, the argument advanced by the learned Senior Counsel for the petitioners stating that as the suit is filed prior to the amendment, the amended provision under Order VI Rule 17 has no application to the instant case is unsustainable. 20. Similarly reliance placed by the learned Senior Counsel for the petitioners on the judgment of the Apex Court in the case of RAJESH KUMAR AGARWAL & OTHERS VS. K.K.MODI & OTHERS- AIR 2006 SC 1647 , has no application to the present case, as the effect of the proviso introduced in Order VI Rule 17 by the Amendment Act has not been considered in the said decision. K.K.MODI & OTHERS- AIR 2006 SC 1647 , has no application to the present case, as the effect of the proviso introduced in Order VI Rule 17 by the Amendment Act has not been considered in the said decision. Likewise, the judgment of the Apex Court in the case of GARIKAPATI VEERAYA VS N.SUBBAIAH CHOUDHRY & OTHERS- AIR 1957 SC 540 , is of no assistance for the petitioners, in as much as, the proposition of law laid down in the said case pertains to the right of appeal which is regarded as vested right and which can only be taken away by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. In the instant case, we are not concerned with any deprivation of a vested right with retrospective effect as the amendment under Order VI Rule 17 does not have such an effect. 21. For all the aforementioned reasons, I find no case is made out for interference in exercise of the writ jurisdiction. Hence, the writ petition is dismissed. 22. It is brought to the notice of the Court that the time fixed by this Court for disposal of the suit is expiring on 31.07.2011 and therefore the same may be extended. Having regard to the submission made at the bar by learned counsel for both the parties time is extended by a further period of six months for the disposal of the suit.