JUDGMENT AND ORDER : Heard Mr. R.J. Bordoloi, the learned counsel for the petitioner as well as Mr. A. Biswas, the learned counsel for the respondent No. 1. None appears for respondent No.2 although notice is deemed to be duly served. 2. This application under article 227 of the Constitution of India has been filed for challenging the order dated 05.05.2017 passed by the learned Civil Judge No.2, Kamrup (Metropolitan), Guwahati in Misc.(J) Case No. 730/2016 arising out of Title Suit No. 387/2014, whereby the prayer for amendment of the written statement was rejected. 3. The respondent No.1 is the plaintiff in Title Suit No.387/2014. The said suit had been instituted for declaration, partition, separate possession and permanent injunction in respect of properties described in Schedule 1 to 6 described in the plaint. The petitioner, who was arrayed as defendant No.1 in the suit, contested the claim by filing written statement. 4. In the month of February 2017, the petitioner filed an application under Order VI Rule 17 read with section 151 CPC for amending the written statement. On the perusal of the Petition No. 4958, filed for amendment of the plaint, extensive amendments were proposed, seeking inserting of a few paragraphs at the end of paragraphs 21, 23, 25 and 27. The respondent No.1/plaintiff contested the application by filing written objection. The learned Trial Court rejected the prayer for amendment by passing the impugned order dated 05.05.2017. 5. Challenging the said order, the learned counsel for the petitioner has submitted that the written statement was filed through earlier set of counsels and the present set of counsel were engaged recently and the new set of counsels after going through the brief had informed the petitioner that there was no specific/detailed reply in the written statement against the main disputed facts and some vital and necessary facts were also left out. It is submitted that the petitioner had duly instructed his earlier set of counsels and by giving necessary instructions and documents. But, only after engaging the present set of counsel the petitioner came to know that the earlier counsel neither submitted any documents in respect of schedule 5 and 6 with the written statement nor a detailed reply was given in connection with schedule 5 and 6 as well as other properties mentioned in the plaint. But, only after engaging the present set of counsel the petitioner came to know that the earlier counsel neither submitted any documents in respect of schedule 5 and 6 with the written statement nor a detailed reply was given in connection with schedule 5 and 6 as well as other properties mentioned in the plaint. It is further submitted that there was no laches or negligence on the part of the petitioner and he was a lay man who did not know to defend his case and what is required and what is not required to be incorporated in the written statement and the petitioner was totally dependent on his counsel in drafting the written statement. It is submitted that the petitioner was under a bona fide impression that as he had given the entire instructions to his counsel all the necessary averments had been made in the written statement. It was submitted that the reason for not incorporating those facts at earlier stage was beyond the control of the petitioner and in spite of negligence on the part of the petitioner he could not incorporate those averments in the written statement. It is submitted that the learned Trial Court had incorrectly appreciated the arguments advanced by the petitioner’s side and failed to apply its judicial mind on the nature of the judicial amendment sought for, which according to the learned counsel for the petitioner, is evident from the finding recorded in the original order to the following effect - “…If the defendant is allowed to amend the written statement in such circumstances, I suppose, it will negate the plea taken by the defendant in his written statement, which is an implied admission in favour of the plaint”, as well by the finding that “… The application for amendment does not disclose any material to come to a conclusion that in spite of due diligence, the amendment petition could not have been filed or the defendants could not have raised the matter before the commencement of trial.” In this connection it is submitted that the petitioner did not make any prayer for amendment for striking out any statements made in the written statement, but, additional statements were sought to be added, which was for the purpose submitting correct facts and therefore, there was no admission which was sought to be diluted. The learned counsel for the petitioner has referred to the statement made in paragraph 3, 4, 6, 7 and 8 of the amendment application, has submitted that there was ample explanation as to why the amendment could not be prayed earlier and regard existence of due negligence. Hence, the learned counsel for the petitioner has prayed for allowing this application as well as the amendment as proposed. In support of his argument, the learned counsel for the petitioner has relied on the following cases:- a. Usha Balashaheb Swami and Ors. Vs. Kiran Appaso Swami & ors., (2007) 5 SCC 602 ; b. Usha Devi Vs. Rijwan Ahamd & ors, (2008) 3 SCC 717 ; c. Chander Kanta Bansal Vs. Rajinder Singh Anand, (2008) 5 SCC 117 ; d. Gautam Sarup Vs. Leela Jetly & ors., (2008) 7 SCC 85 ; e. Vidyabai & ors. Vs Padmalatha & anr., (2009) 2 SCC 409 ; f. Sushil Kumar Jain Vs. Manoj Kumar & Anr., (2009) 14 SCC 38 ; g. Ram Niranjan Kajaria & Anr. Vs. Sheo Prakash Kajaria & Ors. (2015) 10 SCC 203 . 6. On a pointed query, the learned counsel for the petitioner has submitted that the application for amendment was filed at a stage when the case was fixed for plaintiff’s evidence but the examination and cross-examination of PWs has not yet commenced. 7. Opposing this application, the learned counsel for the respondent has submitted that there is no infirmity in the order passed by the learned trial Court and it is submitted that from the application it would be apparent that the entire blame has been shifted on the counsel alone. It is submitted that the names of earlier set of counsels has not been disclosed and therefore, the allegations that the earlier counsels were given all instructions is not believable. It is submitted that when there is a serious allegation against the counsel that due instructions and documents were provided but the same was not incorporated, there was no reason for the petitioner to withhold the names of the counsel to whom such instructions were given. It is submitted that there is no complaint against the earlier set of counsels for the dereliction of their duty. It is submitted that there is no complaint against the earlier set of counsels for the dereliction of their duty. It is submitted that if such bland and baseless allegation are permitted to be accepted than any litigant would be encouraged to change a counsel, make unfounded allegations against the earlier set of counsels and apply for amendment because invariably in all cases, legal drafting are done only by the counsels and, as such, the concept of “due diligence on part of a party to the suit and proceedings” would be given a go bye and replaced by a unknown concept of “due diligence on the part of the engaged counsel”, which was foreign to the scheme of the Civil Procedure Code. 8. It is submitted that written statement was filed by the petitioner on 12.02.2015 and thereafter, the issues were framed on 14.06.2016, and the petition for amendment was filed on 16.11.2016. The learned counsel for the respondent has submitted that he does not dispute the well settled legal provision that one is permitted to explain an admission, but he was submitting that even an explanation to an admission must be satisfactorily explained by showing due diligence. It is submitted that by amendment, no new facts/ subsequent facts are sought to be added but all the statements seeking amendments relates to past events which were known to the petitioner when written statement was filed and, as such, without explaining due diligence, the proposed amendments were contrary to the provisions of proviso to Rule 17 of Order VI CPC. 9. It is submitted that Rule 3, 4 and 5 of Order VIII CPC are instances of admission and therefore, the trial Court was right in recording a finding that the proposed amendments would amount to negate such admissions. It is further submitted that mere use of words “due diligence” was not enough and the petitioner was required to demonstrate the existence of due diligence, in the absence of which, the mere use of words “due diligence” would be only a formality. In support of his arguments the learned counsel for the respondent has relied on the following case citations:- a. Kailash Vs. Nanhku and ors., (2005) 4 SCC 480 ; b. Chander Kanta Bansal Vs. Rajinder Singh Anand, (2008) 5 SCC 117 ; c. Smt. Jayashree Kalbande and Shri Dnyaneshwar Arjunrao Kalbande Vs. In support of his arguments the learned counsel for the respondent has relied on the following case citations:- a. Kailash Vs. Nanhku and ors., (2005) 4 SCC 480 ; b. Chander Kanta Bansal Vs. Rajinder Singh Anand, (2008) 5 SCC 117 ; c. Smt. Jayashree Kalbande and Shri Dnyaneshwar Arjunrao Kalbande Vs. Shri Bhaurao Nagorao Derkar and ors., 2014 (4) MhLJ 168 ; d. Uttam Chand Kothari Vs. Gauri Shanker Jalan and ors., 2007 (1) GLT 37; e. Muhaeddin (MD.) Vs. Prakash Tewari, 2017 (1) GLT 423. 10. In the opinion of this Court, based on the arguments advanced by the learned counsel for both the sides 4 (four) broad issues arise for consideration of this Court:- a. When does the date of trial commence? b. Whether the use of words “due diligence” in an application for amendment is enough or the existence of “due diligence” must be stated in the said petition? c. Whether the learned Trial Court had erred in law in recording an observation that the denials made in para No. 21, 23, 25 and 27 are not specific, thus, it tantamount to an admission, and if so, what remedy can the petitioner have in such a situation? d. What are the powers of the High Court in such matters under Article 227 of the Constitution of India? 11. On the point of determination of No.(a): On this point the learned counsel for the petitioner had relied on the case of Bidyabai and others (supra). The relevant passage of paragraph 8 is as follows:- “8. … the date on which the issues were framed is the date of first hearing. Provisions of the Code of Civil Procedure can be such taking of various steps at different stages of the proceeding. Filing of an affidavit in view of examination in chief of the witness, in our opinion, would amount to ‘commencement of proceeding’. The Full bench of the Hon’ble Apex Court in the case of Kailash Vs. Nanhku and ors. (supra), in paragraph 13 has held as follows:- “13. … In a civil suit the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceeding preliminary to trial or for making the case ready for trial. Nanhku and ors. (supra), in paragraph 13 has held as follows:- “13. … In a civil suit the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceeding preliminary to trial or for making the case ready for trial. Therefore, there remains no doubt that in terms of the case of Kailash (supra) as well as the case of Bidyabai and others (supra) trial begins when the case is set down for recording of evidence and or filing of evidence on affidavit.” 12. In the present case in hand, the issues were framed by the learned trial court on 14.06.2016 and therefore, the next date would have been for filing of evidence. Hence, on the basis of the ratio of the cases of (i) Bidyabai and others (supra) and (ii) Kailash Vs. Nanhku and others (supra), for all purposes the first point of determination is answered by holding that trial had begun in the present case in hand. 13. On the point of determination No.(b): In the opinion of this Court, the language contained in proviso to Rule 17 of Order VI CPC provides for a condition precedent for the learned trial court for allowing amendment after trial has commenced. The learned trial court can allow amendments of written statement liberally, but only after coming to a conclusion that in spite of due diligence the petitioner could not have raised the matter before the commencement of trial. Therefore, according to this Court, the mere use of word “due diligence” in the application for amendment would not be enough. The petitioner herein was required to make some statement to demonstrate before the learned trial court that due diligence was exercised by him before the trial had begun. On a dispassionate reading of the entire amendment petition, it would appear that the case projected by the petitioner was that he had given necessary instructions and documents to his counsel, who drafted the written statement and the non-disclosure of materials and documents in written statement came to light only after new set of counsels were engaged. It is projected that after new net of counsels were engaged, they informed the petitioner that detailed reply to paragraphs 21, 23, 25 and 27 were not given and documents relating to Schedule-5 and 6 properties were not filed. It is projected that after new net of counsels were engaged, they informed the petitioner that detailed reply to paragraphs 21, 23, 25 and 27 were not given and documents relating to Schedule-5 and 6 properties were not filed. Therefore, if the said statement is to be believed, one has to presume that the petitioner had signed the written statement, verified the same under the signature and also sworn an affidavit in support of the written statement without taking minimum care to read the contents thereof to satisfy himself if his instructions were reflected in the written statement. In the absence of a specific statement to the effect, this court is unable to presume that the petitioner had not read the written statement signed, sworn and filed by him, which leads to drawing of further presumption under Section 114 Ill.(g) of the Evidence Act, 1872 that the written statement was correctly drafted as per instructions. On the contrary, if the petitioner has signed, verified and filed his written statement after swearing affidavit in support of the written statement without caring to read its contents, it would be a case where the ingredients of “due diligence” was totally absent at the time of filing of the written statement and lack of due diligence even continued thereafter till the filing of the petition for amendment. Therefore, this Court is constrained to hold that in the absence of any statement that the petitioner does not know to read and write, the petitioner had signed the written statement only after being satisfied with its contents and, as such, the petitioner must take the responsibility of the contents of the written statement and the petitioner would not be permitted to lay all blame on his counsel, without disclosing even the name of the counsel to whom necessary instructions and documents allegedly have been given. The second point of determination is answered accordingly. 14. On the point of determination (c): On this issue this Court is treading with immense caution and self restrain because any comment on whether the statements made in paragraph 21, 23, 25 and 27 of the written statement amounted to admission on the ground that the denial were not specific, would definitely prejudice either side at the time of trial. On the point of determination (c): On this issue this Court is treading with immense caution and self restrain because any comment on whether the statements made in paragraph 21, 23, 25 and 27 of the written statement amounted to admission on the ground that the denial were not specific, would definitely prejudice either side at the time of trial. Therefore, in this connection this Court is heavily relying on the ratio of the case of Uttam Chand Kothari (supra), where in paragraph 23, 32, 33, 35, 36 and 37 this court has held that remedy against the admissions can be availed of under the provisions of Order VIII Rule 5 CPC, whereby the Court may require the plaintiff to prove the facts notwithstanding admissions if any, in the written statement. Thus, it would be open for the petitioner to raise a specific plea before the learned trial court to direct the respondent No.1/plaintiff to prove all facts pleaded in the plaint. The third point of determination is answered accordingly. 15. On the point of determination (d): On this point, this court finds that in the case of Usha Balashaheb Swami (supra), the learned trial court had allowed amendment and the Hon’ble Apex Court had arrived at a finding that new ground of defence was proposed to be inserted in the written statement by way of amendment, which is not the situation in the case in hand, where a plea has been taken that the instructions of petitioner had not been incorporated in the written statement and it was not the case of the case projected by the petitioner that the petitioner was seeking to attack the plaint with additional points of defence and the said plea is found to be unacceptable in the second point of determination answered above. In the case of Usha Devi (supra), the Hon’ble Apex Court had allowed amendment following the ratio of the case of Sajjan Kumar Vs. Ram Kishan, (2015) 13 SCC 89, which was a case where description of suit property was sought to be corrected by amendment, which is not similar to the facts of the present case in hand, where those facts were well known to the petitioner when written statement was filed. Ram Kishan, (2015) 13 SCC 89, which was a case where description of suit property was sought to be corrected by amendment, which is not similar to the facts of the present case in hand, where those facts were well known to the petitioner when written statement was filed. In the case of Chander Kanta Bansal (supra), owing to absence of due diligence, the appeal against disallowing amendment was dismissed and, as such, the said case does not appear to help the petitioner in any way. In the case of Gautam Sarup (supra), the provisions of Order VIII Rule 5 CPC was gone into and it was held that one must get an opportunity to clarify his stand to the extent or effect of such admission, based on which the prayer for amendment was allowed, which is not the situation in the case in hand, because in this revision, the petitioner has taken a specific plea that there was no admission in the written statement and, as such, the case of Gautam Sarup (supra) is distinguishable on facts. In the case of Sushil Kumar Jain (supra), the issues had not been framed and the trial had not begun, which is not the situation in the present case in hand. Somewhat similar proposition exists in the case of Ram Niranjan Kajaria (supra) also, where it has been held that one must get an opportunity to clarify his stand to the extent or effect of such admission, based on which although the prayer for amendment was not allowed, opportunity was granted to defendants No.5 to 12 therein to explain/ clarify the admission made in the written statement, which is not the situation in the case in hand. 16. The scope of the provisions of Article 227 of the Constitution, in the opinion of this Court, is very limited. Powers under this Article cast a duty upon the High Court to keep the inferior courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and tribunals. Powers under this Article cast a duty upon the High Court to keep the inferior courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this Article unless the wrong is relatable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party, as has been held by the Hon’ble Apex Court in the case of Ouseph Mathai V. M Abdul Khadir, (2002) 1 SCC 319 : AIR 2002 SC 110 . It must also be remembered that High Court should not, in guise of exercising jurisdiction under Article 227 of the Constitution of India, convert itself into a court of appeal when the legislature has not conferred a right of appeal thereunder, as has been held by the Hon’ble Apex Court in the case of Bahutmal Raichand Oswal V. Laxmibai R. Tarta, (1975) 1 SCC 858 : AIR 1975 SC 1297 . Coming to the present case in hand, the learned trial court appears to have appreciated the facts and has arrived at a conclusion that the “admission” in the written statement would be displaced if amendment was allowed, which is a situation where the ratio of the case of Uttam Chand Kothari (supra) appears to be the ideal solution and, as such, no interference is called for in respect of the order impugned herein. The fourth point of determination is answered accordingly. 17. As a result, in terms of the answer to the third point of determination, this court deems it fit that it would be open for the petitioner to raise a specific plea before the learned trial court to direct the respondent No.1/plaintiff to prove all facts pleaded in the plaint and that the non-specific denial may not be treated to be an admission within the meaning of Section 58 of the Evidence Act, 1872. 18. Therefore, this application stands dismissed. The parties are left to bear their own cost. 19. 18. Therefore, this application stands dismissed. The parties are left to bear their own cost. 19. The parties herein, who are duly represented by their learned counsels, shall appear before the learned trial court i.e. the Court of the learned Civil Judge No.2, Kamrup (Metropolitan), Guwahati on 09.11.2017 without any notice of appearance, and by producing a certified copy of this order, seek further instructions from the said learned court.