JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri K.K. Nirkhi, for the petitioners. 2. This writ petition has been filed against the order of Additional District Judge, Court No. 24, Kanpur Nagar dated 28.08.2014, rejecting the application for amendment of written statement (38-C) filed by petitioners in Rent Appeal No. 33 of 2012, Prem Shanker & others Vs. Bhagwati Prasad Mishra. 3. Smt. Ram Kumari, mother of Bhagwati Prasad Mishra filed a release application (registered as Rent Case No. 4 of 2007) under Section 21 (1) (a) of U.P. Act No. XIII of 1972 for release of the shop in dispute situated in Premises No. 67/52-A, mohalla Daulatganj, Kanpur Nagar, setting up personal need of the respondent. It has been stated in the application that she was owner and landlady of the shop in dispute and the petitioners were tenant in it. Family of the landlady consists of herself, her son Bhagwati Prasad Mishra, daughter-in-law Smt. Sudha Mishra, grand son Roshan Mishra and grand daughter-in-law Smt. Vandana Mishra. Bhagwati Prasad Mishra was unemployed and doing business of kabar on cycle in pheri. Roshan Mishra was carrying on metal business in a small shop. Bhagwati Prasad Mishra wanted to start business of purchase and sale of old copper and brass metal. The petitioners inherited a house from her mother at mohall Kidwai Nagar, Kanpur Nagar and are moneyed persons. They can shift their business from shop in dispute to their house without any hardship. Need of landlady was genuine and pressing. 4. The petitioners contested the case and filed their written statement. In the written statement, the allegation that Smt. Ram Kumari was owner and landlady of the shop in dispute and the petitioners were tenant in it was admitted. However, it has been stated that she was insisting to enhance the rent which was not accepted by the tenants therefore release application was malafide filed. Radhey Shyam Mishra, husband of the landlady was doing business in one shop in the premises in dispute and after his death Bhagwati Prasad Mishra was doing business in it and the allegation that he was doing pheri on cycle was denied. The release application was filed on false allegations in order to harass the petitioners. 5. The Prescribed Authority by order dated 10.02.2012 found that need of Bhagwati Prasad Mishra for doing his business in the shop in dispute is bonafide and genuine. The release application was filed on false allegations in order to harass the petitioners. 5. The Prescribed Authority by order dated 10.02.2012 found that need of Bhagwati Prasad Mishra for doing his business in the shop in dispute is bonafide and genuine. Allegation that Bhagwati Prasad Mishra was doing business in one shop in the disputed accommodation was not found to be proved. The petitioners were having a house in mohalla Kidwai Nagar where they can shift their business easily as such their was no hardship to them. On these finding the release application was allowed and the landlady was directed to pay two years rent to the petitioners. The petitioners filed an appeal (registered as Rent Appeal No. 33 of 2012) from the aforesaid order. On 04.08.2014, the petitioners filed an application (38-C) for amendment of paragraph-1 of written statement. By the proposed amendment, the petitioners sought to withdraw their admission that Smt. Ram Kumari was owner and landlady of the shop in dispute and have stated that Smt. Ram Kumari and one Sudha Devi was joint owners of the premises in dispute and Sudha Devi did not join with Smt. Ram Kumari in the release application and these fact came to their knowledge on 03.08.2014 during preparation of the appeal for arguments. The amendment application was contested by the respondent, who filed his objection. Additional District Judge, after hearing the parties by order dated 28.08.2014 held that the proposed amendments are in the nature of legal plea which can be argued by the petitioners at the time of final arguments without amending written statement. On these findings the amendment application was rejected. Hence this writ petition has been filed. 6. The counsel for the petitioners submitted that the order of the court below is illegal in as much the proposed amendment amounts to mixed issue of law and fact and without there being pleading in this respect, no argument can be raised by the petitioners. The release application has been filed on false allegation that Smt. Ram Kumari was sole owner and landlady. In such circumstances the proposed amendment was necessary for deciding the controversy between the parties and was liable to be allowed but it has been illegally rejected causing material prejudice to the petitioners. Order VI, Rule 17 C.P.C. provides for amendment of the pleading at any stage of the suit. In such circumstances the proposed amendment was necessary for deciding the controversy between the parties and was liable to be allowed but it has been illegally rejected causing material prejudice to the petitioners. Order VI, Rule 17 C.P.C. provides for amendment of the pleading at any stage of the suit. While preparing the case for final arguments, facts of the proposed amendment was noticed on 03.08.2014. He relied upon the judgments of this Court in State of U.P. Vs. Ashok Kumar, 2014 (8) ADJ 251 , in which it has been held that an amendment application can be filed at any stage i.e. in appeal also and amendment application to explain/withdraw the admission in written statement can be allowed. 7. I have considered the arguments of the counsel for the petitioners and examined the record. The proposed amendment are to the effect that Smt. Ram Kumari was not sole owner and landlady of the premises in dispute rather one Sudha Devi was joint owner of the premises in dispute and Sudha Devi did not join with Smt. Ram Kumari in the release application. In the written statement, it was admitted that Ram Kumari was sole owner and landlady of the premises in dispute. Thus the proposed amendments amount to withdrawal of the admission of the petitioners in their written statement. In respect of delay it has been stated that fact of the proposed amendment was noticed on 03.08.2014 at the time of preparation of appeal for final arguments. 8. Order VI Rule 17 C.P.C., as amended in 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." 9. Supreme Court in Modi Spinning & Weaving Mills Company Ltd. Vs. Supreme Court in Modi Spinning & Weaving Mills Company Ltd. Vs. Ladha Ram, AIR 1977 SC 680 , held that the defendants cannot be allowed to change completely the case made in paras 25 and 26 of the written statement and substitute an entirely different and new case. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. Same view has been taken in Heera Lal Vs. Kalyan Mal, (1998) 1 SCC 278 , Gautam Swarup 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 . 10. In B.K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712 , Supreme Court held that the principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as the question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates (sic results) in defeating a legal right accruing to the opposite party on account of lapse of time. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates (sic results) in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement. Thus in view of the authoritative pronouncements of Supreme Court, the case law relied upon by the counsel for the petitioners cannot be followed. 11. Now the next question arises 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 fact relating to the proposed amendment was noticed at the time of preparation of the appeal for final arguments on 03.08.2014. 12. Supreme Court in Salem Advocate Bar Assn. (II) v. Union of India, (2005) 6 SCC 344 , held that Order VI 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. 13. 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. 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. 14. 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 . 15. The written statement was drafted by an advocate after reading the plaint. 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. Mohd. Ruldu, (2012) 11 SCC 341 . 15. The written statement was drafted by an advocate after reading the plaint. 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 defendants falls in the category of 'negligence' and not 'due diligence'. Trial Court rightly rejected the amendment application, as Proviso to Order VI Rule 17 C.P.C., now castes a rider on the power of the Court in allowing amendment application. 16. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.