JUDGMENT 1. - This writ petition under Article 226 and 227 of the Constitution of India has been filed by the petitioner aggrieved against order dated 02.01.2015 passed by the trial court, whereby, the application filed by the petitioner under Order 6, Rule 17 CPC seeking amendment in the plaint has been rejected by the trial court. 2. The facts in brief may be noticed thus : t The petitioner plaintiff filed a suit on 22.02.2010 seeking cancellation of sale deed dated 12.06.2007 and possession of the plot and in the alternative for recovery of the amount of sale consideration; it was averred in the plaint that plaintiff owns a plot of land at Sumerpur; the petitioner is a permanent resident of Ahmedabad and, therefore, the plot was being looked after by defendant No. 1 and a power of attorney dated 13.01.2004 was executed in his favour; in May, 2007 the defendant No. 1 was directed not to act on the power of attorney; in December, 2007 when the defendant No. 1 misbehaved, the petitioner inquired at the office of the Sub Registrar and came to know that defendant No. 1 has executed sale deeds in favour of his wife and the same have been got registered on 13.06.2007; it was alleged that the sale deeds were executed by defendant No. 1 in favour of defendant No. 2 without paying any consideration to the petitioner only with a view to grab the land in question; the sale deeds were void and were liable to be cancelled; in the alternative it was prayed that the amount of consideration as indicated in the sale deeds be ordered to be paid by the defendants to the plaintiff, which in the suit was Rs. 3,00,000/-. 3. A written statement was filed by the defendants on 29.05.2010 and a replication was filed by the plaintiff on 25.03.2011; whereafter issues were framed by the trial court and affidavits in evidence were also filed by the plaintiff; whereafter, on 04.04.2014 an application under Order 6, Rule 17 CPC was filed by the plaintiff seeking amendment in the plaint, so as to claim that though in the sale deeds the consideration shown was Rs. 3,00,000/-, the Sub Registrar as per DLC rates has valued the property at Rs. 6,82,000/- and the actual market rate of the plot was Rs. 3,00,000/-, the Sub Registrar as per DLC rates has valued the property at Rs. 6,82,000/- and the actual market rate of the plot was Rs. 15,00,000/- to 16,00,000/- and in the alternative relief also sought amendment to claim Rs. 15,00,000/- instead of Rs. 3,00,000/-. 4. The application was opposed by the defendants on the ground that the amendment was not permissible in law; the nature and form of the suit would change and in view of the fact that evidence has already started and affidavit of the plaintiff has already been filed, the grant of amendment was not justified. 5. The trial court after hearing the parties came to the conclusion that the plaintiff has not explained reason regarding awareness or non-awareness of the market rate at the time of filing of the suit, though the nature of the suit by the amendment would not change, but the valuation and Court fees would change; however, the plaintiff has not sought any amendment in the valuation and Court fees of the suit in the suit as per the pleadings; affidavits of three witnesses have already been filed and cross-examination of the plaintiff to some extent has already been taken place and grant of amendment would take the suit back to previous stage and, consequently, dismissed the application. 6. 6. It is submitted by learned counsel for the petitioner that the trial court was not justified in dismissing the application filed by the petitioner, inasmuch as, merely because the paragraphs in the plaint pertaining to the valuation and Court fees were not proposed to be amended by the plaintiff, if the amendment was granted by the trial court, as a natural consequence, the plaintiff would have paid the additional Court fees and the same cannot be a sufficient reason for rejection of the application filed by the petitioner; it was submitted that the trial court though has not rejected the application on the ground of proviso to Order 6, Rule 17 CPC, however, certain observations have been made in the context of the said proviso and in view of the law laid down by Hon'ble Supreme Court in the case of Baldev Singh v. Manohar Singh : (2006) 6 SCC 498 it cannot be said that the trial has commenced and, therefore, on that count also the amendment could not have been refused by the trial court and, therefore, the order passed by the trial court deserves to be set aside and the amendment deserves to be granted. 7. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 8. Admittedly, in the present case the plaint was filed on 22.02.2010, the written statement was filed on 29.05.2010, the replication was filed on 25.03.2011, whereafter the affidavits of three witnesses were filed by the plaintiff and, till that stage, the petitioner continued to claim the amount of Rs. 3,00,000/- as a consideration in the alternative for the sale deeds executed by defendant No.1; however, the application was filed during the cross-examination of PW-1 Champalal seeking to amend the alternative plea enhancing the same from Rs. 3,00,000/- to 15,00,000/-. 9. 3,00,000/- as a consideration in the alternative for the sale deeds executed by defendant No.1; however, the application was filed during the cross-examination of PW-1 Champalal seeking to amend the alternative plea enhancing the same from Rs. 3,00,000/- to 15,00,000/-. 9. A bare look at the application filed by the petitioner indicates that after making averments regarding the proposed amendments in few paragraphs, the following averments were made in the application:- " 5- ;g gS fd mijksDrkuqlkj okn&i= ds in la[;k 14 ds vfHkfyf[kr vfHkopuksa esa mijksDr la'kks/ku dj vfHkopu tksM+s tkus ls okn ds uspj esa dkuwuu fdlh izdkj dk cnyko ugha gksrk gSA rFkk mijksDr la'kks/ku ls izfroknhx.k dkuwuu fdlh izdkj ls fizT;qfM'k ugha gksrs gSA rFkk vHkh okn izdj.k esa oknh lk{; esa ek= ih0MCyw&1 pEikyky oknh ds eq[; c;ku gh gq;s gSa ftldh ftjg vkjEHk gksrs gh vly nLrkost ds vHkko esa vkxkeh ftjg gsrq fjtoZ j[kh gqbZ gSaA ftlls dkuwuu mijksDr la'kksf/kr vfHkopuksa o rF;ksa ij izfroknhx.k dks dkuwuu iw.kZ ftjg dk volj izkIr gSA 6- ;g gS fd mijksDr of.kZr la'kks/ku okn&i= ds in la[;k 14 esa fd;k tkuk U;k;fgr esa vko';d gSA vU;Fkk oknh U;k; izkfIr ls oafpr jg tk;sxkA 7- ;g fd vU; otqgkr cjoDr cgl is'k fd;s tk;saxsA vr% nj[okLr e; 'kiFk&i= is'k dj fuosnu gS fd ekfQd nj[okLr oknh dks okn&i= ds in la[;k 14 esa o in la[;k 18 fodYi ds vuqrks"k ( v ) esa izLrkfor vko';d la'kks/ku fd;s tkus dh vuqefr o vkns'k QjekosaA bfr fnukad %& 04-04-2014 " 10. From the above averments it is apparent that the petitioner has failed to indicate any reason whatsoever necessitating filing of the amendment application as required by proviso to Order 6, Rule 17 CPC. The provisions of Order 6, Rule 17 CPC read as under:- "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 trial." 11. Under the proviso, an application seeking amendment after the trial has commenced cannot be allowed 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; for attracting the said provision, the minimum requirement in an application under Order 6, Rule 17 CPC seeking amendment in the plaint after commencement of trial is that the applicant has to make out a case that despite due diligence the matter could not be raised before the commencement of the trial; however, in the present case, not a word has been indicated by the plaintiff in this regard. 12. Hon'ble Supreme Court in the case of Vidyabai & Ors. v. Padmalatha & Anr. : (2009) 2 SCC 409 while dealing with the proviso to Order 6, Rule 17 CPC observed as under:- "10. ...............It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. 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 lie of examination-in-chief of the witnesses, in our opinion, would amount to "commencement of proceeding". 15. ...............The ratio in Kailash was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. 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 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 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." 13. Hon'ble Supreme Court clearly laid down that the proviso was mandatory; the jurisdiction to allow amendment is taken away unless the Court comes to the conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial; the proviso restricts the power of the Court and unless the jurisdictional fact i.e. the aspect pertaining to due diligence is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint. It was further laid down with reference to various judgments that filing of an affidavit in lieu of examination in chief of the witness would amount to commencement of proceeding and the trial is deemed to commence when the issues are framed and the case is set down for recording of evidence. 14. As to what is meant by due diligence, the same has been explained by Hon'ble Supreme Court in J. Samuel & Ors. v. Gatuu Mahesh & Ors. : (2012) 2 SCC 300 as under:- "19. 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. 20. 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." 15. 20. 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." 15. From the law laid down by Hon'ble Supreme Court in the cases of Vidyabai (supra) and J. Samuel (supra), it is apparent that in the present case the trial has already commenced and, therefore, it was incumbent on the petitioner to make out a case that in spite of due diligence the matter could not be raised before the commencement of trial; as already noticed hereinbefore, not a word has been indicated in the application in this regard and, therefore, jurisdictional fact for invoking provisions of Order 6, Rule 17 CPC have not been alleged in the application and, therefore, the trial court was justified in rejecting the application filed by the petitioner. So far as the judgment in the case of Baldev Singh (supra) relied on by learned counsel for the petitioner is concerned, Hon'ble Supreme Court in the case of Vidyabai (supra) noticed the judgment and the paragraph relied on by the learned counsel for the petitioner and observed as under:- "16. Reliance, however, has been placed by Ms Suri on Baldev Singh v. Manohar Singh wherein it was opined: "17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 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, it 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 mending the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. 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 mending the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, 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 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings." It is not an authority for the proposition that the trial would not be deemed to have commenced on the date of first hearing. In that case, as noticed hereinbefore, the documents were yet to be filed and, therefore, it was held that the trial did not commence." 16. The judgment in the case of Baldev Singh (supra) having been noticed by Hon'ble Supreme Court in the case of Vidhya Bai (supra) and thereafter laying down the proposition as quoted hereinbefore, would be the only binding precedent. 17. In view of the above discussion, there is apparently no substance in the writ petition and the same is, therefore, dismissed summarily. The stay application is also dismissed.Petition dismissed. *******