JUDGMENT 1. - By this writ petition, a challenge is made to the order dated 24th March, 2006 whereby the application under Order 6 Rule 17 of Civil Procedure Code for amendment in the written statement was dismissed. 2. Learned counsel for the defendant-petitioners submits that application under Order 6 Rule 17 of Civil Procedure Code for amendment in the written statement is to be decided liberally. The amendment in the written statement is for advancement of cause and to bring true facts on record. Learned Court below dismissed the application after discussing the facts on merit, though jurisdiction does not lie to discuss the issue on merit while deciding the application under Order 6 Rule 17 of Civil Procedure Code. A reference of judgment of Hon'ble Supreme Court in the case of Andhra Bank v. ABN AMRO Bank N.V. & Ors. reported in (2007) 6 SCC 167 has been given. It is further stated that delay in making application for amendment in written statement is not fatal. The application for amendment cannot be rejected on the aforesaid ground. The judgment of Hon'ble Supreme Court in the case of Baldev Singh & Ors. etc. v. Manohar Singh & Ors. etc. reported in JT, 2006(45) AIC 82 (SC) : 2006 (64) ALR 895 : 2006 (7) SC 139 has been referred. It is stated that amendment sought in the written statement was to the effect that plaintiff-non-petitioner No.1 has started new business thus very ground to seek eviction no more survives. Another amendment was regarding availability of sufficient place in the same premises thus there exists no bona fide necessity for eviction. Both the amendments were material and should have been allowed. This is moreso when application for amendment in the plaint and written statement cannot be decided with the same yardstick. For amendment in the written statement, the Courts are required to take liberal approach whereas same yardstick may not apply for amendment in the plaint. It is accordingly prayed that impugned order dated 24th March, 2006 may be set aside by allowing the application under Order 6 Rule 17 of Civil Procedure Code. 3. Learned counsel for the respondent/s, on the other hand, submits that impugned order was rightly passed by the Court below considering the fact that amendment was sought after initiation of proceedings. 4. 3. Learned counsel for the respondent/s, on the other hand, submits that impugned order was rightly passed by the Court below considering the fact that amendment was sought after initiation of proceedings. 4. Referring to the proviso to Order 6 Rule 17 of Civil Procedure Code, it is submitted that after initiation of proceedings, amendment cannot be sought as a matter of right. The Court below has rightly dismissed the application under Order 6 Rule 17 of Civil Procedure Code. 5. It is further stated that this Court, while exercising jurisdiction under Article 227 of the Constitution of India, can cause interference in the impugned order only when error apparent on the face of record is shown. No jurisdictional error exist in the impugned order so as to cause interference by this Court. Accordingly, writ petition deserves to be dismissed on that ground also. 6. Coming to the facts of this case, it is stated that amendment in the written statement was to the effect that plaintiff-non-petitioner No.1 started new business. The fact aforesaid was considered by the Court below and finding admission of new business but closure thereof after a year, the Court below came to the conclusion that amendment is not necessary. This is moreso when the fact regarding closure of business was not controverted by the defendant-petitioners. 7. So far as availability of sufficient premises with the plaintiff-non-petitioner is concerned, pleading to that effect exists in the written statement where the defendants have stated that alternative premises are available to the plaintiff. In view of above, the defendants would be at liberty to lead evidence to substantiate the pleadings already taken in the written statement. Further amendment for the aforesaid purpose is not required therefore also there is no illegality in dismissal of the application moved by the petitioners. 8. Learned counsel for the petitioners, at this stage, submits that application for amendment was moved sometime in the year 2003 and decided in the year 2006. If, in between, any evidence was led, it should not affect right of the petitioners to seek amendment in the written statement. The commencement of proceedings can be after evidence by the plaintiff. The application for amendment in the written statement should not be dismissed on hyper technical ground. 9. I have considered rival submissions made by learned counsel for the parties and scanned the matter carefully. 10. The commencement of proceedings can be after evidence by the plaintiff. The application for amendment in the written statement should not be dismissed on hyper technical ground. 9. I have considered rival submissions made by learned counsel for the parties and scanned the matter carefully. 10. The facts, not in dispute, are that an application for amendment in the written statement was moved by the petitioners at the stage when cross examination of the witness, namely, Narendra Mehta was to be undertaken. In view of above, amendment was sought at the stage when witnesses from plaintiffs' side were already examined. 11. The fact remains as to whether application under Order 6 Rule 17 of Civil Procedure Code has rightly been decided by the Court below or not? 12. For the aforesaid purpose, it is necessary to look into as to what amendment was sought in the written statement. The perusal of the application reveals that first amendment was in respect of new business started by the plaintiff-respondent No.1. The second amendment was regarding availability of sufficient place in the same premises. Learned Court below considered both the issues. 13. So far as first issue is concerned, it was determined after going through merit of the case whereas amendment application cannot be dismissed after considering the facts on merit. In the case of Andhra Bank (surpa), it has been held that question of amendment in the written statement cannot be determined on merit. The application can be considered to find out as to whether amendment would be necessary for decision on real controversy between the parties. Relevant para No.5 of the judgment aforesaid is quoted hereunder for ready reference: "5. We have heard Mr. Rohit Kapadia, learned senior counsel appearing for the appellant and Mr. S. Ganesh, learned senior counsel for the respondent. We have perused the original written statement as well as the application for amendment of the written statement. After going through the written statement and the application for amendment of the written statement, we are of the view that the amendment sought to be introduced by the appellant must be allowed. From a perusal of the impugned order of the Special Court we find basically that two grounds have been taken by the Special Court for rejecting the prayer for amendment of the written statement. From a perusal of the impugned order of the Special Court we find basically that two grounds have been taken by the Special Court for rejecting the prayer for amendment of the written statement. The first ground is that considerable delay has been caused by the appellant in filing the application for amendment of the written statement. It is well settled that delay is no ground for refusal of prayer for amendment. Mr. Ganesh, appearing for ABN Amro Bank submits before us that by filing of such an application for amendment of the written statement which has been filed with long delay, the appellant sought to stall the hearing of the suit which has been fixed on 13th July, 2007. In response to this Mr. Kapadia, learned Counsel for the appellant, submits that in the event the prayer for amendment is allowed by us his client undertakes to file the amended written statement by day after tomorrow, i.e., 12th July, 2007 before the Special Court. Since, we are of the view that delay is no ground for not allowing the prayer for amendment of the written statement and in view of the submissions made by Mr. Kapadia, we do not think that delay in filing the application for amendment of the written statement can stand in the way of allowing the prayer for amendment of the written statement. So far as the second ground is concerned, we are also of the view that while allowing an application for amendment of the pleadings, the Court cannot go into the question of merit of such amendment. The only question at the time of considering the amendment of the pleadings would be whether such amendment would be necessary for decision of the real controversy between the parties in the suit. From a perusal of the amendment application we find that the appellant in their prayer for amendment has only taken an additional defence that in view of Section 230 of the Indian Contract Act, the suit itself is not maintainable. It is well settled, as noted herein earlier, that at the time of considering the prayer for amendment of the written statement it would not be open to the Court to go into the fact whether in fact the suit in view of Section 230 of the Indian Contract Act was or is not maintainable." 14. It is well settled, as noted herein earlier, that at the time of considering the prayer for amendment of the written statement it would not be open to the Court to go into the fact whether in fact the suit in view of Section 230 of the Indian Contract Act was or is not maintainable." 14. In view of para quoted above, it is, no doubt, true that Court cannot go into the question of merit while dealing with the application for amendment, however, the application cannot be allowed casually or without considering the fact as to whether amendment would be necessary for decision on real controversy between the parties. If the facts of this case are looked into, first amendment sought was regarding start of new business by plaintiff-respondent No.1. The fact aforesaid was admitted by the plaintiff while submitting reply to the application. However, for further fact regarding closing of business after a year, no affidavit was filed to controvert the fact aforesaid. On the basis of it, application for amendment was rejected. I find it nothing but determination of issue on merit. The fact as to whether business was closed or not can be determined only if pleadings in the written statement for start of new business is allowed and not otherwise. 15. In the light of the aforesaid, so far as first amendment is concerned, determination of issue is on merit whereas same is not permissible. 16. So far as second issue is concerned, it is regarding availability of sufficient premises with the plaintiff. I find that fact aforesaid was available to the petitioners at the time when initial written statement was filed. No justification exists as to why this fact was not stated in the written statement. The amendment to this effect cannot be allowed casually and at the sweet will of the defendant/s. It is, no doubt, true that application under Order 6 Rule 17 of Civil Procedure Code is required to be dealt with liberal approach but it cannot be casually. No justification exists in the application for amendment for a fact which was in the knowledge of the petitioners when written statement was filed. The perusal of the application for amendment does not reveal that the fact regarding availability of premises was not in the knowledge of the petitioners at the time of filing the written statement. No justification exists in the application for amendment for a fact which was in the knowledge of the petitioners when written statement was filed. The perusal of the application for amendment does not reveal that the fact regarding availability of premises was not in the knowledge of the petitioners at the time of filing the written statement. In absence of such plea and looking to the fact that statements of witnesses have already been recorded, amendment to this effect has rightly been rejected by the Court below after commencement of proceedings. It may not be on the ground of delay but in absence of reasons to justify subsequent amendment as per proviso of Order 7 Rule 14 of Civil Procedure Code. 17. In substance of the discussion made above, I am of the opinion that so far as amendment regarding start of new business by the plaintiff-non-petitioner No.1 is concerned, amendment to this effect should have been allowed by the Court below, however, so far as amendment regarding availability of sufficient space within the same premises is concerned, no justification for amendment exists, rather rigor of Proviso to 6 Rule 17 of Civil Procedure Code comes against the petitioners as proceedings commenced before the application. 18. In view of above, writ petition is allowed in part by modifying the order dated 24th March, 2006. The amendment in the written statement is allowed so far as plea regarding start of new business by the plaintiff-respondent No.1 is concerned, however, another amendment in the written statement cannot to be allowed. 19. Since it is an old matter and evidence of plaintiffs has already been started, the trial Court is directed to expedite the hearing of eviction application and, if possible, decide the suit within a period of six months from the date of receipt of copy of this order. Amended written statement may be filed within a period of two weeks from today. Both the parties are directed to cooperate with the Court below.Petition Party Allowed. *******