ORDER : Heard learned counsels for the parties. 2. The present writ petition has been filed for quashing the order dated 10th January, 2007, whereby the petitioner's prayer for amending the written statement has been rejected primarily on the ground that the same has been filed belatedly. It has further been prayed, inter alia, for issuance of a direction upon learned Sub Judge-III, Rajmahal in Title Suit No.24 of 1996 to allow the amendment in the written statement sought by the petitioner by filing an application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure (for short CPC). 3. The factual matrix of the case as appears from the writ petition is that the original Respondent-Dinesh Chandra Ray filed a title suit, being Title Suit No.24 of 1996, for declaration of his right, title and possession in the property, described in Schedule-A of the plaint and also for delivery of possession. The petitioner being the defendant in the suit appeared and filed written statement. Thereafter, the suit proceeded and the evidences on behalf of the parties were also adduced. The suit was, thereafter, fixed for hearing and at that stage an application under Order VI Rule 17 CPC was filed by the petitioner, stating, inter alia, that due to inadvertence he did not plead in the written statement that he had been in adverse possession of the suit land and as such he may be allowed to amend the written statement. However, the learned Sub Judge rejected the said application vide order dated 10th January, 2007, observing, inter alia, that the said amendment in the written statement sought by the petitioner cannot be allowed, as the evidence in the suit has already been closed and the petitioner has also argued the case partly. 4. Aggrieved by the order dated 10th January, 2017, the petitioner has filed the present writ petition. 5. Learned senior counsel appearing on behalf of the petitioner submits that a detailed written statement was filed by the petitioner, denying the averments raised by the original respondent regarding his title and possession over the land, in question. 4. Aggrieved by the order dated 10th January, 2017, the petitioner has filed the present writ petition. 5. Learned senior counsel appearing on behalf of the petitioner submits that a detailed written statement was filed by the petitioner, denying the averments raised by the original respondent regarding his title and possession over the land, in question. However, due to inadvertence, the petitioner could not take specific plea of adverse possession in the written statement and, therefore, he wanted to add a new paragraph, being Paragraph No.16-A, in support of the fact that he had been in adverse possession of the suit land for a considerable period. 6. Learned senior counsel appearing for the petitioner further submits that it is a well settled principle that prayers for amendment of the plaint and written statement stand on different footings. The general principle is that amendment of plaint should not be allowed so as to materially alter or substitute the cause of action or the nature of claim made in the plaint. However, the said rigor does not apply in relation to the amendment of the written statement. Therefore, the addition of new ground of defence or substituting or altering a defence should not be tested with the same parameter, which is meant for amendment of the plaint. Due to this reason, the Courts have been more liberal in allowing the amendment in the written statement. The amendment in the written statement can be sought by the defendant at any stage of trial. It is finally submitted that the learned court below committed a serious error in rejecting the amendment application of the petitioner on the ground that the same has been belatedly filed. Learned senior counsel in support of his argument, puts reliance on the judgments reported in AIR 2007 SC 1663 [Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors.] and 2010(1) JCR 5 (SC) [Surender Kumar Sharma Vs. Makhan Singh] . 7. Per contra, learned counsel for the respondents submits that the petitioner being the defendant in the suit filed amendment application under Order VI Rule 17 CPC at a very belated stage when the final argument of the defendant was being heard. Vs. Kiran Appaso Swami & Ors.] and 2010(1) JCR 5 (SC) [Surender Kumar Sharma Vs. Makhan Singh] . 7. Per contra, learned counsel for the respondents submits that the petitioner being the defendant in the suit filed amendment application under Order VI Rule 17 CPC at a very belated stage when the final argument of the defendant was being heard. It is further submitted that the said amendment in the written statement sought by the petitioner will materially change the case of the defendant, as the petitioner claimed his title and possession over the suit land on the basis of unregistered deed of gift and in the said situation, the petitioner tried to change his claim by way of adverse possession. 8. Learned counsel for the respondents further submits that the suit was filed by the original respondent in the year 1996 and the petitioner appeared in the suit proceeding as defendant on 19th August, 1997 and, thereafter, the written statement was also filed. Subsequently, the issues were framed and both the parties led their evidences. However, when the suit proceeding was at the verge of conclusion and the final hearing on behalf of the defendant/petitioner was being heard, an application under Order VI Rule 17 CPC for amendment of the written statement was filed. The said application filed by the petitioner was with a motive to delay the trial and, therefore, the learned court below rightly rejected the said amendment application filed by the petitioner. The impugned order dated 10th January, 2007 passed by the learned Sub Judge-III, Rajmahal being completely legal and justified does not warrant any interference by this Court. 9. Having heard learned counsels for the parties and on perusal of the relevant documents placed on record, it appears that the original respondent filed the suit in question in the year 1996. After notice, the petitioner appeared as defendant in the suit proceeding on 19th August, 1997 and after lapse of more than two years, he filed his written statement on 7th December, 1999. Subsequently, both the parties adduced their respective evidences and the case was finally fixed for argument on 31st October, 2006. After notice, the petitioner appeared as defendant in the suit proceeding on 19th August, 1997 and after lapse of more than two years, he filed his written statement on 7th December, 1999. Subsequently, both the parties adduced their respective evidences and the case was finally fixed for argument on 31st October, 2006. The argument on behalf of the petitioner was partly made and at that stage an application under Order VI Rule 17 CPC was filed, seeking amendment in the written statement by inserting a new paragraph, being Paragraph No.16-A, taking a plea that he had been in adverse possession of the suit land over a period of time. Thus, it appears that after about ten years from the date of filing of the suit, the case was fixed for final hearing and at that stage, the aforesaid amendment was sought by the petitioner. 10. Here it would be relevant to discuss the amended provision of Order VI Rule 17 CPC substituted by Act 22 of 2002 with effect from 1st July, 2002, which reads 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. On plain reading of Order VI Rule 17 CPC, it would transpire that the Court has discretion to allow either party to make amendment in the pleading for the purpose of determining the real question in controversy between the parties, however, with a proviso that no application for amendment shall be allowed after commencement of the trial, unless the Court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before commencement of trial. However, in the present case, the petitioner, being the defendant, filed his written statement as far back as on 7th December, 1999, denying and disputing the averments raised in the plaint on several grounds. However, in the present case, the petitioner, being the defendant, filed his written statement as far back as on 7th December, 1999, denying and disputing the averments raised in the plaint on several grounds. Moreover, possession over the suit land was also claimed by the petitioner in the said written statement on the basis of unregistered deed of gift. Therefore, the contention raised on behalf of the petitioner cannot be accepted that the plea of adverse possession was not available with him at the time of filing of the written statement on 7th December, 1999. Curiously, the evidence was also led on behalf of the petitioner and the part argument was also made on his behalf and at that stage, the amendment was sought to be made in the written statement, which can be said to be with a view to delay the conclusion of the trial. 12. The judgment of Usha Balashaheb Swami (Supra) relied upon by the learned counsel for the petitioner was based in a completely different factual context. In the said case, the Defendant Nos.1 to 7 put their appearance in the suit on 28th February, 2003 and an application for amendment of the written statement was filed on 18th June, 2003, which was allowed by the Civil Judge, Senior Division, Kolhapur, but subsequently, on a writ application filed before the Bombay High Court, the order allowing amendment was set aside. In that context, the Hon'ble Supreme Court has held that the rigor of amendment of plaint does not apply, so far as the amendment of written statement is concerned, as the both stand on different footings. However, in the present case, there has been a delay of more than ten years in seeking amendment in the written statement by the petitioner that too for adding such fact, which was already available to him at the time of filing of the written statement. 13. Further, in the case of Surender Kumar Sharma (Supra), the Hon'ble Supreme Court has held that though the amendment sought by the plaintiff was belated, but while considering such application for amendment, the Court should bear in mind that allowing amendment should do complete justice in the case. Moreover, in the facts of the said case, it was held by the Hon'ble Supreme Court that the amendment sought in the plaint would no way change the nature and character of the suit. Moreover, in the facts of the said case, it was held by the Hon'ble Supreme Court that the amendment sought in the plaint would no way change the nature and character of the suit. However, in the present case, the specific case of the petitioner in the written statement was that he had been in possession of the suit land by way of a deed of gift, but seeking amendment in the written statement, the fact of adverse possession was sought to be added, which appears to be completely contrary to the earlier stand taken by the petitioner in the written statement and, therefore, the said amendment would have serious bearing on the nature and character of the suit. 14. The Hon'ble Supreme Court in the case of J. Samuel & Ors. Vs. Gattu Mahesh & Ors., reported in (2012)2 SCC 300 , while considering the object and purpose of amended provision of Order VI Rule 17 CPC, in Paragraph Nos.16, 17, 18 & 19 has held as under:- “16. As stated earlier, in the present case, the amendment application itself was filed only on 24-9-2010 after the arguments were completed and the matter was posted for judgment on 4-10-2010. On proper interpretation of the proviso to Rule 17 of Order 6, the party has to satisfy the court that it could not have discovered that ground which was pleaded by amendment, in spite of due diligence. No doubt, Rule 17 confers power on the court to amend the pleadings at any stage of the proceedings. However, the proviso restricts that power once the trial has commenced. Unless the court satisfies (sic itself) that there is a reasonable cause for allowing the amendment, normally the court has to reject such a request. 17. An argument was advanced that since in the legal notice sent before the filing of the suit, there is reference to readiness and willingness and the plaintiff has also led in evidence, nothing precluded the court from entertaining the said application which we are unable to accept in the light of Section 16(c) of the Specific Relief Act as well as proviso to Order 6 Rule 17. The only reason stated so in the form of an affidavit is omission by “type mistake”. Admittedly, it is not an omission to mention a word or an arithmetical number. The only reason stated so in the form of an affidavit is omission by “type mistake”. Admittedly, it is not an omission to mention a word or an arithmetical number. The omission is with reference to specific plea which is mandated in terms of Section 16(c) of the Specific Relief Act. 18. The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The court’s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However, to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states 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.” (emphasis supplied) 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.” 15. 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.” 15. On perusal of the judgment of the Hon'ble Supreme Court in the case of J. Samuel (Supra), it would emerge that after the amendment was carried out in Order VI Rule 17 CPC (By Act 22 of 2002, with effect from 1st July, 2002), the key emphasis is on the term “due diligence” which has been specifically provided as a test for determining whether to exercise the discretion in a situation if amendment is sought after the commencement of trial. The courts discretion to grant permission to a party to amend his pleadings lies on two conditions; firstly no injustice must be done to the other side and secondly the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However, to maintain the balance in the interest of the parties, the proviso of Order VI Rule 17 CPC is of vital importance, which specifically provides that no application for amendment shall be allowed after the trial has commenced unless the Court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before commencement of the trial. Thus, the said proviso of Order VI Rule 17 casts duty upon the Court to test the aspect of 'due diligence' on the part of the party seeking amendment after commencement of the trial. 16. Coming back to the facts of the present case, though the written statement was filed by the petitioner on 7th December, 1999, the proposed amendment was sought by the petitioner at the stage of argument by an application filed under Order VI Rule 17 CPC in the month of December, 2006 i.e. more than seven years of filing of the original written statement that too seeking insertion of the fact of adverse possession, which was already available with the petitioner at the time of filing of the original written statement and, therefore, it cannot be said that the petitioner succeeded in the test of “due diligence” in seeking the said amendment so belatedly. 17. 17. Considering the aforesaid facts and circumstances, I find no reason to interfere with the impugned order dated 10th January, 2007 passed by the learned Sub Judge-III, Rajmahal in Title Suit No.24 of 1996. The writ petition, being devoid of merit, is, accordingly, dismissed. The interim order, if any, stands vacated. 18. Learned Court below is directed to fix the case for argument within fifteen days from the date of receipt of a copy of this order and to conclude the suit proceeding as expeditiously as possible, preferably within a period of two months thereafter.