JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri M.A. Khan, Senior Advocate, assisted by Sri Uma Shankar Sahai for the petitioner and Sri Ashok Pratap Singh Gaur, for respondent-2. 2. This writ petition has been filed against the order of Civil Judge, (respondent-1) dated 09.07.2013, allowing the application for amendment of written statement filed by respondent-2 in Regular Suit No.932 of 2011 Shakeel Ahmad Vs. Yusuf Jamal Siddiqui. 3. The petitioner filed a suit (registered as Regular Suit No.932 of 2011) for ejectment of respondent-2, from house No. A-4/2, Paper Mill Colony, Nishatganj, Lucknow. It has been stated by the plaintiff that the house in dispute was purchased by him through registered sale deed dated 19.03.2010, from Lucknow Development Authority, Lucknow, in auction sale held in the year 1998. The defendant is real brother of the plaintiff. Due to some problem, the defendant was permitted to live in the house in dispute as licensee. The plaintiff is a practicing advocate High Court, Lucknow Bench as such in order to accommodate his clients, he was in acute need of the house in dispute. The plaintiff asked the defendant to vacate it. The defendant however was avoiding the request of the plaintiff, then by registered notice dated 19.10.2011, licence of the defendant was revoked and he was asked to vacate the house in dispute within 30 days. The notice was served upon the defendant on 20.10.2011 but he had not vacated the house in dispute. On these allegations, suit for ejectment and mesne profit was filed. 4. Respondent-2 contested the suit and filed his written statement on 12.04.2012. In the written statement, plaint allegations were denied. In additional pleas, it has been stated that one Iftikhar Ahmad was tenant in the house in dispute on the monthly rent of Rs. 82. He was bachelor and was served by the defendant, in his last days. Iftikhar Ahmad executed a will dated 09.09.1997, in his favour and died on 04.11.1997. After death of Iftikhar Ahmad, Lucknow Development Authority seized the house in dispute on 31.12.1997. The defendant moved an application for release of the house in dispute in his favour, claiming to be heir of original tenant Iftikhar Ahmad, on the basis of his will dated 09.09.1997, then after making inquiry in respect of the claim of the defendant, house in dispute was released in his favour. The defendant moved an application for release of the house in dispute in his favour, claiming to be heir of original tenant Iftikhar Ahmad, on the basis of his will dated 09.09.1997, then after making inquiry in respect of the claim of the defendant, house in dispute was released in his favour. After taking possession, the defendant renovated the house in dispute in April-May, 2010. The defendant was not licensee but tenant of the house in dispute since 1995. In case, the plaintiff had acquired ownership from Lucknow Development Authority, of the house in dispute, then he had become his tenant. The plaintiff get the house in dispute allotted, concealing the correct fact that the defendant had inherited tenancy and never surrendered his tenancy right. 5. Thereafter, issues were framed on 17.09.2012 and evidence was recorded by Civil Judge. Evidence of the plaintiff was closed on 11.01.2013. The defendant filed affidavit of examination of chief of his witnesses and 01.03.2013 was fixed for cross examination of the witnesses. On 01.03.2013, file of the Court was misplaced as such, the case could not be taken. On 06.03. 2013, the defendant filed an application for amendment of written statement for adding paragraphs-18-A to 18-L in the written statement. In the proposed amendment, the defendant stated that he and the plaintiff both had jointly inherited tenancy of Iftikhar Ahmad, under his will. Thereafter Lucknow Development Authority published auction notice of the house in dispute, then his eldest brother Sri Shahid Jamal Siddiqui paid entire expenses of auction sale etc. of the house in dispute with intention to purchase it, in the names of two brothers the plaintiff and defendant but the plaintiff fraudulently got the auction sale in his name concealing joint tenancy. The amendment application was contested by the petitioner, who filed his objection dated 14.01.2013, stating therein that the plaintiff was educated man and the proposed amendment was well within his knowledge at the time of filing of written statement and in view of Proviso to Order VI Rule 17 C.P.C., after commencement of the trial in the suit, amendment application cannot be allowed. In the original written statement, ownership of the plaintiff of the house in dispute was not disputed and now the defendant is claiming himself to be joint owner. The amendment application has been malafide filed to delay the hearing of the suit. In the original written statement, ownership of the plaintiff of the house in dispute was not disputed and now the defendant is claiming himself to be joint owner. The amendment application has been malafide filed to delay the hearing of the suit. Civil Judge, after hearing the parties by order dated 09.07.2013 held that the defendant has stated that his earlier counsel has not incorporated correct pleading in his written statement, due to which amendment application has been filed. Unless, the proposed amendment causes material prejudice to the other party, liberal view ought to have been taken in allowing the amendment application. The defendant has given detail reasons for filing the amendment application. The proposed amendment does not change the nature of the suit and will avoid multiplicity of the suit. On these findings amendment application was allowed. Hence this writ petition has been filed. 6. The counsel for the petitioner submitted that observation of the court below that proposed amendment does not change the nature of the suit, is uncalled for as proposed amendment was for amendment of written statement and not of the plaint. The plaintiff filed suit for ejectment of the defendant on the basis of title. In the written statement, title of the plaintiff was admitted and the defendant claimed himself to be tenant. At the time of evidence, the defendant could not adduce any evidence relating to his tenancy, then by the proposed amendment, he changed his stand and began to claim title over the house in dispute. The proposed amendment amounts to withdrawal of admission in the written statement, which cannot be permitted. In any case the proposed amendment was well within the knowledge of the defendant at the time of filing written. As such in view of Proviso to Order VI Rule 17 C.P.C., amendment application cannot be allowed after commencement of the trial in the suit. The order of trial court is illegal and liable to be set aside. 7. In reply to the aforesaid arguments, the counsel for the defendant submitted that the suit was filed claiming possession against the defendant who is the real brother of the plaintiff. For all practical purposes, the plaintiff is required to prove his title in view of Section 110 of Evidence Act, 1872. 7. In reply to the aforesaid arguments, the counsel for the defendant submitted that the suit was filed claiming possession against the defendant who is the real brother of the plaintiff. For all practical purposes, the plaintiff is required to prove his title in view of Section 110 of Evidence Act, 1872. In these circumstances, the defendant has filed the application for amendment claiming joint title over the house in dispute along with the plaintiff. Order 6 Rule 17 CPC provides that parties can be permitted to amend their pleadings and the amendment which is necessary for deciding the real question of the controversy should be allowed and the party should not be deprived from raising a legal defence in his favour, if the amendment is not suffering from inordinate delay. In the present case, the suit was filed in the year 2011 and the amendment application was filed on 6.3.2013 and there was no inordinate delay in filing the amendment application. The purpose of amendment is to avoid multiplicity of the proceeding as well as to avoid taking any undue advantage to the act or omission in the pleading. In any case, the procedural laws are hand-made for delivering justice and to search truth and should not be so strictly construed to deprive a party of his valid claim or defence. The Trial Court after considering the facts and circumstances, allowed the amendment application of the petitioner, exercising its discretion. The discretion exercised by the Trial Court cannot be interfered by this Court in exercise of writ jurisdiction. He relied upon the judgment of Supreme Court in Baldev Singh v. Manohar Singh, (2006) 6 SCC 498 and Andhra Bank v. ABN Amro Bank N.V. And others (2007) 6 SCC 167 , in which it has been held that amendment application to amend the written statement cannot be refused only on the ground of delay. He also relied upon the judgment of Supreme Court in Pankaja v. Yellappa and others, AIR 2004 (SC) 4102 , Rajesh Kumar Aggarwal v. K.K. Modi and others, 2006 (4) SCC 385 and Ramesh Kumar Agarwal v. Raj Mala Exports, 2012 (5) SCC 337 . 8. I have considered the arguments of the parties and examined the record. Whether proposed amendment amounts to withdrawal of admission by the defendant in written statement. 8. I have considered the arguments of the parties and examined the record. Whether proposed amendment amounts to withdrawal of admission by the defendant in written statement. In paragraph-18 of the written statement, the defendant has stated that the plaintiff also got the sale deed executed in his favour playing fraud and concealment of tenancy of the defendant. In paragraph-17 of the written statement, the defendant has stated that he had inherited the tenancy and now become tenant of the plaintiff if he had acquired ownership from Lucknow Development Authority. Thus title of the plaintiff was admitted. Now by way of amendment, the defendant is pleading that he is joint owner of the house in dispute along with the plaintiff. Supreme Court in Modi Spinning & Weaving Mills Co. Ltd. Vs. Ladha Ram & Company, (1976) 4 SCC 320 , Heera lal Vs. Kalyan Mal, (1998) 1 SCC 278 , Usha Balasaheb Swami Vs. Kiran Appaso Swami, (2007) 5 SCC 602 ,Gautam Swaroop Vs. Leela Jetly, (2008) 7 SCC 85 , Sumesh Singh Vs. Phoolan Devi, (2009) 12 SCC 689 and Vishwanath Agrawal Vs. Savitri Bera (2009) 15 SCC 693 held that an admission cannot be permitted to be withdrawn by amendment. 9. Now the next question arise as to whether the proposed amendment can be allowed in view of Proviso to Order VI Rule 17 C.P.C. The defendant alleged that the earlier counsel committed negligence in drafting the written statement. The defendant, being a semi illiterate person, could not know about it. When he engaged new counsel then the defect was noticed. Order VI Rule 17 C.P.C., as amended in the year 2002, is quoted below: - "17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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 trial." 10. Supreme Court in Salem Advocate Bar Assn. Supreme Court in Salem Advocate Bar Assn. (II) v. Union of India, (2005) 6 SCC 344 , held that Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision. 11. The phrase "due diligence" came for consideration before Supreme Court in Chander Kanta Bansal v. Rajinder Singh Anand, AIR 2008 SC 2234 , in which it has been held that the words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), 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 Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "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. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13-A) "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. 12. Supreme Court again in J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300 , held that due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. 12. Supreme Court again in J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300 , held that due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term "due diligence" is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. A party requesting a relief stemming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit. In the given facts, there is a clear lack of "due diligence" and the mistake committed certainly does not come within the preview of a typographical error. Similar view was taken in Vidyabai Vs. Padma Latha, (2009) 2 SCC 409 , Sushil Kumar Jain Vs. Manoj Kumar, (2009) 14 SCC 38 and Abdul Rehman Vs. Mohd. Ruldu, (2012) 11 SCC 341 . 13. The written statement was drafted by an advocate after reading the plaint in which the plaintiff has stated that the house in dispute was purchased by him through registered sale deed dated 19.03.2010, from Lucknow Development Authority, Lucknow, in auction sale held in the year 1998 and the defendant was licensee in it. Reply of the facts as well as plea for contest on behalf of the defendant were raised in the written statement. After legal advice, it cannot be said that in exercise of "due diligence" the fact sought to be brought in the pleading by way of amendment was not in the knowledge of the defendant. A distinction has to be drawn between 'due diligence' and 'negligence'. The case of the defendant falls in the category of 'negligence' and not 'due diligence'. Trial Court illegally allowed the amendment application, without considering the effect of the Proviso to Order VI Rule 17 C.P.C., which now caste a rider on the power of the Court. 14. A distinction has to be drawn between 'due diligence' and 'negligence'. The case of the defendant falls in the category of 'negligence' and not 'due diligence'. Trial Court illegally allowed the amendment application, without considering the effect of the Proviso to Order VI Rule 17 C.P.C., which now caste a rider on the power of the Court. 14. Now, question arise as to whether proposed amendment was necessary for determining the real questions in controversy between the parties. The suit for ejectment of the defendant was filed on the basis of title. The plaintiff is required to prove his title in order to get the relief in the suit. Now the defendant is raising the plea that his elder brother paid entire consideration for purchase of the house in dispute for the plaintiff and the defendant. Thus still, the defendant has not alleged that he had purchased it or paid sale consideration. The proposed amendment is not necessary to decide the controversy between the parties. 15. In view of the aforesaid discussions, writ petition succeeds and is allowed. The order of Civil Judge (respondent-1) dated 09.07.2013 is set aside. Amendment application dated 06.03.2013 is rejected. Civil Judge is directed to proceed with the tiral of the suit forthwith and decide it on merit in accordance of law, expeditiously preferably within a period of six months after hearing the parties.