Judgment : Rule is made returnable forthwith. Heard the matter finally by consent of the learned counsels appearing for the parties. 2] This petition challenges the order dated 31.10.2012 passed by the learned 26th Joint Civil Judge, Junior Division, Nagpur, rejecting the application Exh. 42 filed in Regular Civil Suit No. 242/2007. The application was for amendment of written statement filed 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. 3] 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 inadvertence cannot be a ground to ignore the statutory provisions. The amendment proposed is not a new discovery but was prevailing since inception of suit and it could have been easily raised prior to the commencement of the trial. The finding is also recorded that the amendment does not strictly appear to be necessary for the adjudication of the present suit. 4] Shri Kulkarni, the learned counsel appearing for the petitioner has placed his reliance upon the following decision. [1] Rajesh Kumar Aggrawal and others vrs. K.K Modi and others, reported in (2006) 4 SCC 385 [2] Baldev Singh and others vrs. Manohar Singh and another, reported in (2006) 6 SCC498; [3] Usha Balasaheb Swami and others vrs. Kiran Appaso Swami and others, reported in (2007) 5 SCC 602 ; [4] Andhra Bank vrs. ABN Amro Bank N.V. and others, reported in (2007) 6 SCC 167 ; [5] Piedade Fernandes vrs. Charlene Leitao, reported in 2012 (1) Mh.L.J. 317 5] In the decision of the Apex Court in Rajesh Kumar Aggrawal’s case, cited supra, the Apex Court has held in paragraph 15 as under; “15. ABN Amro Bank N.V. and others, reported in (2007) 6 SCC 167 ; [5] Piedade Fernandes vrs. Charlene Leitao, reported in 2012 (1) Mh.L.J. 317 5] In the decision of the Apex Court in Rajesh Kumar Aggrawal’s case, cited supra, the Apex Court has held in paragraph 15 as under; “15. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.” 6] He has invited my attention to para 17 of the decision of the Apex Court that in Baldeo Singh’s 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 hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings”. 7] In the decision of the Apex Court in Usha Balasaheb Swami’s case, the decision in Baldeo Singh’s case has been followed in para 20, which reads as under; “20. 7] In the decision of the Apex Court in Usha Balasaheb Swami’s case, the decision in Baldeo Singh’s case has been followed in para 20, which reads as under; “20. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case [see B.K. Narayana Pillai v. Parameswaran Pillai ( 2000(1) SCC 712 ) and Baldev Singh & Ors. v. Manohar Singh ( 2006 (6) SCC 498 )]. Even the decision relied on by the plaintiff in Modi Spinning (supra) clearly recognizes that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) [1995 Supp (3) SCC 179]. In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be 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 manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action." 8] Relying upon the aforesaid decisions, it is urged that the first thing which the court is required to see is whether the amendment proposed is necessary for deciding the real controversy involved in the matter. That will apply only to a case of the plaint being amended so as to introduce a new cause of action." 8] Relying upon the aforesaid decisions, it is urged that the first thing which the court is required to see is whether the amendment proposed is necessary for deciding the real controversy involved in the matter. He further submits that the amendment could be raised at any stage of the suit and the court should, therefore, be liberal in allowing the application for amendment. He has tried to make out the distinction between the amendment in the plaint and the amendment in the written statement. He submits that the amendment in the written statement needs to be allowed more liberally than the amendment in the plaint. 9] With the assistance of the learned counsels appearing for the parties, I have gone through all the decision cited supra. In Baldeo Singh’s case, the amendment in the written statement was rejected on the three grounds i.e. (i) that since the appellants had made certain admissions in the written statement, its amendment cannot be allowed permitting the appellants to withdraw from the admissions made in the same; (ii) the question of limitation cannot be allowed to be raised by way of amendment of the written statement and (iii) inconsistent pleas in the written statement cannot also be allowed to be raised by seeking its amendment. It was not the ground of rejection of the application for amendment that there was no due diligence shown by 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 of the decisions cited by Shri Kulkarni, the learned counsel for the petitioner, are of any help to the petitioner. 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 of the decisions cited by Shri Kulkarni, the learned counsel for the petitioner, are of any help to the petitioner. 10] In the decision of this Court delivered in W.P. No. 722/2013 (Walchandnagar Industries Limited vrs. Indraprastha Developers and others) and other connected matters, delivered on 25.09.2013, the question of due diligence has been dealt with after considering the several decisions of the Apex Court. The law on the point is summarized in para 87 as under; “87. The law on “due diligence” developed till this date is summarized as under : (a) “Due diligence” means careful and persistent application and effort. It means the diligence as a prudent man would exercise in the conduct of his own affairs. Unless the party takes prompt steps, mere action cannot be accepted after the commencement of the trial. The due diligence determines the scope of party's constructive knowledge of the claim. It is a kind of reasonable investigation, which is necessary before claiming the reliefs. (b) The due diligence is distinct from ignorance. In spite of knowledge, ignorance by a party or an Advocate cannot be a matter of due diligence. The neglect to perform an action, which one has an obligation to do, cannot be called as a mistake. (c) The degree of prejudice to the other side by an amendment after the commencement of the trial is greater than one at pretrial stage. (d) Without recording finding on the question of due diligence, the Court shall not get jurisdiction 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. (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 fast rule or straitjacket formula can be laid down.” 11] It is on the basis of the ratio laid down by the Apex Court in Paras 11 and 19 in case of Vidyabai and Others vrs. Padmalatha and another, reported in 2009 (2) SCC 409 , this court had held that without recording finding on the question of ‘due diligence’, the court shall not get jurisdiction either to allow or reject the application if it is made after the commencement of the trial. Paragraphs 11 and 19 of the said decision in Vidyabai’s case are reproduced below; “11. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to “commencement of proceeding”. 19. It is the primal duty of the court to decide as to whether such an amendment is 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 of the Code 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 of the plaint.” 12] In the light of the aforesaid clear dictum of the Apex Court, I have gone through the pleadings for amendment of the written statement. 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.” 12] 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 amendment have occurred during the pendency of the suit, that too after the commencement of the trial. 13] Shri Kulkarni, the learned counsel appearing for the petitioner has relied upon the decision of the Apex Court in case of Kakumanu Pedasubhayya and another vrs. Kakumanu Akkammaa and another, reported in AIR 1958 SC 1042 , specially paragraph 14 therein, to urge that a right of the minor is involved and the proposed amendment directly reflects upon the right of the minor. He, therefore, submits that the amendment needs to be allowed on that count. 14] It is not in dispute that it was a joint written statement filed by the defendant nos.1 to 5. The plea raised by way of amendment could have been raised when the written statement was filed. Apart from this, no such case is made out in the application for amendment of the written statement. Hence, under the garb of protecting rights of a minor, the circuitous way cannot be adopted, to get the amendment allowed at the instance of the defendants. In the result, no interference is called for in the order impugned. The writ petition is dismissed.