JUDGMENT : A.J. SHASTRI, J. 1. Present petition under Article 227 of the Constitution of India is filed by the present petitioner for the purpose of seeking following relief’s:- (A) Your Lordships may be pleased to admit and allow this petition. (B) That the Your Lordships may be pleased to call for the records and proceedings and having examined the legality, validity and propriety of the impugned order be pleased to issue appropriate writ, order or direction quashing and setting aside the Order at Annexure-A passed on 17.2.2018 below Exhi.202 in Civil Suit No.4356 of 1984 by learned 18th City Civil Judge, Ahmedabad. (C) Pending admission hearing and final disposal of this petition, this Hon'ble court may be pleased to stay the execution, implementation and operation of the order passed by learned 18th Civil Judge, Ahmedabad in Civil Suit No.4356 of 1985 dated 17.2.2018 below Exhi.202 and further proceedings of Civil Suit No.4356 of 1984 be stayed, in the interest of justice. (D) …....... (E) ….......” 2. The case, in brief, submitted by the petitioner is that the respondents herein got one deed executed by the petitioner on or about 31.10.1964 and also got registered on the very same day. The respondents claimed that they were brokers for transaction of lease of the concerned property from its original owner and the consideration mentioned in the deed is in respect of role played by the respondents for getting the bargain done regarding lease of the questioned property between the petitioner and the original owners. On the same day, i.e. on 31.10.1964, the original owners executed the lease deed conferring leasehold right on the petitioner of the questioned property for a period of 99 years with a liberty to the petitioner to renew the lease for a further period of 99 years. It is the case of the petitioner that the respondents instituted Civil Suit No.4356 of 1984 in the Court of learned City Civil Judge and prayed for a relief of eviction of the petitioner from the questioned land after demolishing the entire existing residential premises about 96 apartments constructed by the society to provide housing accommodation to its members and alternatively prayed that in the eventuality, the Court refused to grant relief of eviction, prayer for damages to the extent of Rs.2,80,00,000/- be granted against the present petitioner. The petitioner appeared in the suit proceedings, submitted written statement raising the factual and the legal contentions. The said civil suit of 1984 at one point of time got dismissed for default. Later on, the same was restored and the issues were framed at Exh.14. In the suit of 1984, the respondents preferred an application at Exh.202 in the year 2017, i.e. almost after a period of 33 years for seeking substantial amendment by way of alternative relief of damage in the sum of Rs.2,40,00,00,000/-. This application preferred under Order 6 Rule 17 of the Code of Civil Procedure ('the Code' for short) came to be contested. However, learned Judge surprisingly allowed the same by way of an order dated 17.2.2018 and has allowed the suit to be converted into a claim of Rs.2,40,00,00,000/- in place of Rs.2,80,00,000/-. Since this has got effect of amendment almost after a period of 33 years, the petitioner has assailed the same by way of the present petition under Article 227 of the Constitution of India. 3. The Court originally issued notice on 12.3.2018 and thereafter, from time to time, the same has come up for consideration and finally, the petition has come up for consideration in which learned advocates have requested that in view of the peculiar set of circumstance, the petition be finally dealt with as the very same time will consume in even after formal admission of the petition and considering the long length of pendency of the suit, the Court deemed it proper to take up the matter upon the request of learned advocates. Resultantly, the Court heard the advocates who represented the respective sides. 4. Learned advocate Mr. M.C. Bhatt appearing with learned advocate Mr. Ankit Shah for Mr. Vikram Thakore for the petitioner has vehemently contended that there is a gross delay in moving the application by the respondents herein and even after unreasonable period of time, the Court has surprisingly allowed the amendment by resorting to Order-6 Rule 17 of the Code. Learned Judge has also allowed the said amendment converting the suit from a claim of Rs.2,80,00,000/- to Rs.2,40,00,00,000/-, which has prejudicially affected the petitioner. In fact, in this suit, the issues have framed way back in December 1999. Learned Judge has also allowed the said amendment converting the suit from a claim of Rs.2,80,00,000/- to Rs.2,40,00,00,000/-, which has prejudicially affected the petitioner. In fact, in this suit, the issues have framed way back in December 1999. The suit is said to have been commenced moment the issues have been framed and therefore, after commencement of the trial of the suit, such kind of amendment changing the entire complex of the suit may not be allowed. This amendment has been sought practically after a period of more than two decades and later on, compensation/ damages has been completely given go-bye by granting such amendment. Mr. Bhatt has submitted that the reasons which are assigned while passing the impugned order are also not germane, which may sustain the conclusion in the eye of law. The concept of damages has been completely misconstrued by learned Judge and on the contrary, the general principle applicable to all the claims of damages which result from one and the same cause of action must be recovered at one and the same time and that damages for a wrong can only be claimed once and accrues at the of wrongful act. This principle has been completely given go-bye by granting such amendment and hence, such material illegality in exercising the jurisdiction deserves to be corrected by setting aside the impugned order. Mr. Bhatt has further submitted that no application shall be allowed after commencement of the trial and that is the purport of Order-6 Rule 17 of the Code which has got frustrated by passing such orders. Mr. Bhatt has further submitted that this enhancement of relevant prayer in terms of money is hopelessly time barred since the same has not been submitted within a reasonable period of time prescribed by the law of limitation. It has further been contended that here is a case in which the cause of action arose to file a suit for eviction occurred in the year 1967 and in 1976, because of the averments contained in the plaint, notices were issued against the petitioner having committed breach of the deed. It has further been contended that here is a case in which the cause of action arose to file a suit for eviction occurred in the year 1967 and in 1976, because of the averments contained in the plaint, notices were issued against the petitioner having committed breach of the deed. First notice was issued on 26.4.1976, second one on 6.2.1976 and what has been prayed for in the amendment is in the year 2018, so in a suit of 1984, by resorting to this amendment under Order 6 Rule 17 of the Code, the claim has been re-generated in the year 2018, which is nothing but a clear example of abuse of the process of the Court machinery. It has further been contended that the amendment itself is illogical and de hors the concept of awarding of damages. The alleged increase in the market value of the property has no nexus with the cause of action, for which a particular claim has been determined. Mr. Bhatt has submitted that at the best, upon such damages which have been claimed in the year 1984, rate of interest can be claimed and that can be considered but, the factum of damages cannot be so enhanced. This being a material error in exercising the jurisdiction, the order in question deserves to be quashed and set aside. 5. To strengthen the submission, learned advocate Mr. Bhatt has drawn the attention of the Court to the test to be applied while considering the amendment that whether such amendment is necessary for determining the real question in controversy and secondly, the Court has to decide before dealing with such as to what is the real controversy. By drawing the attention to the Court the relief of eviction, ultimately is real crux of the controversy, and this damages which has been claimed is an incidental relief so at the best, at the time when the damages were sought for the first time, the said claim is to be restricted to and if suitable to grant, then by way of interest, the amount can be awarded upon such claim. If aforesaid two tests, which are indicated, if not satisfied, the amendment cannot be granted. Mr. Bhatt has relied upon few decisions:- (1) In the case of Liliben, Wd/o Gabubhai Narsinhbhai Through Power of Attorney and Ors. Vs. If aforesaid two tests, which are indicated, if not satisfied, the amendment cannot be granted. Mr. Bhatt has relied upon few decisions:- (1) In the case of Liliben, Wd/o Gabubhai Narsinhbhai Through Power of Attorney and Ors. Vs. Ramilaben W/o. Mohanbhai Govindbhai Patel reported in 2012(2) GLH 308 ; (2) In the case of Schener Process India Ltd. Vs. Videocon Industries Ltd. reported in 2012(2) GLH 447 ; (3) In the case of Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and others reported in (2013)9 SCC 485 ; By referring to the above decisions, a contention is reiterated that the impugned order is nothing but a clear example of material error of exercising jurisdiction. Hence, the order impugned to be set aside. 6. To meet with the stand taken by learned advocate Mr. Bhatt, learned advocate Mr. Maunish Pathak appearing for the contesting respondents – original plaintiffs has submitted that it is a normal rule that amendment can be moved at any stage before pronouncement of judgment and as such, there is no error committed by the Court below in allowing such amendment since the suit has not reached at the final stage. It has further been submitted that by virtue of grant of amendment, nature of the suit is not getting changed since alternative prayer for damages is very much contained in the plaint. Therefore, the basic substratum of the claim of damages is not getting altered. Therefore, in a situation like this, when there is stiff price rise in the property in correlated with this, the damages be also accelerated. As a result of this, when such eventuality is considered by the Court below, there is hardly any reason to agitate against the impugned order. Apart from this, the main relief has been sought for of eviction. So, by amending such alternative relief, there seems to be no serious prejudice likely to be caused to the petitioner. It is just on account of figure of damages, hue and cry is tried to be made which has no place to stand. The discretion which has been exercised by the Court below is perfectly justified in the eye of law. Hence, such well reasoned order may not be disturbed in exercise of the extraordinary jurisdiction. It is just on account of figure of damages, hue and cry is tried to be made which has no place to stand. The discretion which has been exercised by the Court below is perfectly justified in the eye of law. Hence, such well reasoned order may not be disturbed in exercise of the extraordinary jurisdiction. It has further been contended that the very object of the provisions contained under Order 6 Rule 17 is to avoid multiplicity of proceedings. Here is a case in which if alternatively, the question of damage is to be considered, then this price rise will have definitely to be considered by the Court. Simply because the suit has taken too much time, such ground cannot be utilized as a lever to discard the request of the plaintiffs. That being so, there is hardly any error reflecting in a well reasoned order. Hence, in absence of any material irregularity or perversity, no interference be made. No other submissions have been made. 7. Having heard learned advocates appearing for the parties and having gone through the material aspects on record, few circumstances are not possible to be unnoticed by the Court while dealing with the present petition:- (1) First of all, the suit, which has been filed, is filed in the year 1984, In the suit of 1984, the issues have been framed at Exh.14 way back on 10.12.1990 and right from framing of the issues, the trial of the suit is said to have commenced in an undisputed position. (2) Further, it appears that originally, when the notice came to be issued, what has been claimed for is an amount of Rs.8,15,000/- and ultimately, based upon this basic step precedent of the suit, a suit relief in the alternative form is claimed at Rs.2,80,00,000/- as on filing of the suit. The cause of action which has been spelt out in para 11 of the the plaint mentions that since the registered notices have not been complied with, one on 26.4.1967 and another on 6.2.1976, the said act at the relevant point of time has left the plaintiff to file the suit. The basic claim contained in para 12(B) is related to eviction and alternative prayer, if to be seen, is the claim of Rs.2,80,00,000/- with interest at the rate of 6%. The basic claim contained in para 12(B) is related to eviction and alternative prayer, if to be seen, is the claim of Rs.2,80,00,000/- with interest at the rate of 6%. This relief alternatively is not suggesting that the same is on the basis of valuation of the property and that thereto, no relief is sought that the same would accrue time and again in relation to valuation of the property. The effect of such relief as such can be said to be one time cause of action for claiming damages. (3) The concept of continuing cause of action if to be looked into, it suggests that unless a cause of action becomes complete, a party will not be entitled to bring an action and he is then bound to ask for the entire relief which naturally flows from it, that is to say that he will be debarred from splitting it up. The amendment which is now being sought is in connection with the complete cause of action since the cause of action became complete in 1984, at that stage, the suit came to be filed with specific relief and therefore, it cannot be construed that it correlates with valuation and pendency of the proceedings would go on allowing the plaintiff to accelerate the rate of damages. Further, the general principle which is applicable to cases how to assess damages even in the case of continuing cause of action, suggests that all damages which result from one and the same cause of action must be recovered at one and the same time and that damage for a wrong can only be claimed once and the same cause of action accrues on the date of the wrongful act and wrongful act is a complete cause of action which led the plaintiffs to bring the suit. Therefore, this effect of continuing wrong and general principle attached to the claim of damages would clearly indicate that what has been claimed for is not possible to be granted and therefore, learned Judge has committed serious error in passing the impugned order. (4) Yet, another dimension from which also, the present controversy can be looked into is that what would be the real test of considering the amendment, whether to be allowed or not. (4) Yet, another dimension from which also, the present controversy can be looked into is that what would be the real test of considering the amendment, whether to be allowed or not. Two principles/ conditions governing the said issue in considered opinion of this Court are that (1) whether the amendment is necessary for determining the real question in controversy and (2) if this condition is not satisfied, the amendment cannot be allowed and further, if the amendment is necessary to decide the real controversy, then normally, amendment to be allowed. But, these basic tests, which govern the Court unchartered powers of amending the pleadings suggest that no amendment should be allowed when it does not satisfy the aforesaid cardinal tests. Therefore, here is a case in which the basic controversy which is reflecting from the plaint, if to be looked into, this amendment in an alternative relief, cannot be treated to be a part of real controversy to be examined by the Court because essentially, the basic relief is a relief of eviction of the petitioner. This damages is not the real controversy. It is in alternative form, i.e. if eviction is not possible, then in an alternative form. So, the real controversy, if to be looked into, it appears that learned Judge has committed serious error in observing the object or Order-6 Rule 17 of the Code. 8. In light of the aforesaid discussion, if now, in the case law which has been cited by learned advocate, if to be looked into, same will have also bearing on the conclusion of this Court. Hence, the Court deems it proper to consider the same. (1) First judgment which has been relied upon by learned advocate which is a well known case of Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. and Ors. reported in 2017(12) SCALE 837 . The Apex Court while dealing with an issue of Order-6 Rule 17 has considered the factum of time gap which is also relevant to decide the controversy and therefore, taking note of the issue of time gap, the Court of-course was dealing with Order 22 Rule 10 of the Code but the relief was with respect to an issue of amendment and as such para 18 observations are relevant to the issue. Hence, the Court deems it proper to reproduce the same:- “18. Hence, the Court deems it proper to reproduce the same:- “18. As pointed out earlier, the application was filed after 27 years of filing of the suit. Of-course, the power to allow the amendment of suit is wide and the court should not adopt hyper technical approach. In considering amendment applications, court should adopt liberal approach and amendments are to be allowed to avoid multiplicity of litigations. We are conscious that mere delay is not a ground for rejecting the amendment. But in the case in hand, the parties are not rustic litigants; all the respondents are companies and the dispute between the parties is a commercial litigation. In such facts and circumstances, the amendment prayed in the Chamber Summons filed under Order XXII Rule 10 CPC ought not to have been allowed, as the same would cause serious prejudice to the appellant. In our view, the impugned order, allowing Chamber Summons No.187 of 2014 filed after 27 years of the suit would take away the substantial rights of defence accrued to the appellant and the same cannot be sustained.” (2) Yet, another decision which is delivered by this Court in the case of Liliben Wd/o. Babubhai Narsinhbhai (supra), which is also exactly on the issue of Order-6 Rule 17 and in the said decision, the Court at length, has examined the evidence and has clearly observed in para 20 that after commencement of the trial, no such amendment be permitted. The settled law on the basis of several decision has been enlisted in the judgment and as such, the relevant observations contained therein, the Court deems it proper to reproduce hereinafter:- “18. It is settled law that grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment, (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party, (iii) when allowing amendment application defeats the law of limitation. 20. It would also be expedient to refer to a Supreme Court's decision in the matter of Chandra Kanta Bansal v/s. Rajinder Singh Anand, reported in 2008(2) GLH 477 , wherein the Supreme Court dealt with the provisions of Order 6, Rule 17, more particularly, the proviso and the words “due diligence”. 20. It would also be expedient to refer to a Supreme Court's decision in the matter of Chandra Kanta Bansal v/s. Rajinder Singh Anand, reported in 2008(2) GLH 477 , wherein the Supreme Court dealt with the provisions of Order 6, Rule 17, more particularly, the proviso and the words “due diligence”. In paragraph 11 of the judgment, the Supreme Court observed as under: “As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restrictions. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of “due diligence” the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application. The words “due diligence” has not been defined in the Code. According to Oxford Dictionary (Edition 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 (Eighth Edition), “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 Edition 13A) “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. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial.” 21. In the case of Union of India v/s. Pramod Gupta by L.Rs. And others, reported in (2005)12 SCC 1, the Supreme Court cautioned that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing the application for amendment of the pleadings. 22. In L.J.Leach & Co. In the case of Union of India v/s. Pramod Gupta by L.Rs. And others, reported in (2005)12 SCC 1, the Supreme Court cautioned that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing the application for amendment of the pleadings. 22. In L.J.Leach & Co. Ltd. (supra), the Supreme Court in paragraph 16 of the said judgment observed as follows : “It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interest of justice.” 23. Again in T.N. Alloy Foundry Co. Ltd. v/s. T.N. Electricity Board and Ors., reported in 2004(3) SCC 392 , the Supreme Court observes as follows : “The law as regards permitting amendment to the plaint, is well settled in L.J.Leach and Co. Ltd. v/s. Jardine Skinner and Co., it was held that the Court would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But this is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it. It is not disputed that the appellate court has a coextensive power to the trial court. We find that the discretion exercised by the High Court in rejecting the plaint was in conformity with law.” (3) Yet another decision which is delivered by the Apex Court in the case of Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Regd.) v. Ramesh Chander and Ors., reported in AIR 2011 SC 41 . This judgment also has also discouraged the amendment which is otherwise found to be barred by law, which plea is definitely taken by learned advocate representing the petitioner. This judgment also has also discouraged the amendment which is otherwise found to be barred by law, which plea is definitely taken by learned advocate representing the petitioner. Since the issues have been settled one, the Court would not like to unnecessary burden the judgment by reproducing the observations but in substance, in the said judgment, the Supreme Court has discouraged the amendment after an unreasonable period of 11 years. (4) Another decision which has reiterated almost the similar issue which is in the case of Schener Process India Ltd. (supra), wherein also certain principles have been enunciated. But, again since the law is made amply clear on such, the Court is refraining itself from incorporating the observations made in the said judgment. (5) In the decision delivered by the coordinate Bench of this Court in the case of Shaileshkumar Nathalal Modh and Ors. Vs. Chaudhary Takhatben Kesharbhai dated 17.10.2014, the Court has also aptly observed and discussed various issues and circled the area for grant or refusal of issue of amendment. Para 6,8 and 12 are sufficient enough to attract the present controversy, which are reproduced hereinafter:- “6. Comparative study of the above provisions makes it clear that after the amendment of Rule 17 of Order 6 of the Code, no application for amendment is to be allowed after trial has commenced unless the Court comes to the conclusion that in spite of due diligence, parties could not raise the matter before commencement of trial. In other words, proviso to Order 6 Rule 17 of the Code put an embargo on the exercise of jurisdiction by the Court unless the jurisdiction fact, as envisaged in proviso, is found to be existing. 8. With a view to first ensure whether the plaintiffs had exercised due diligence so as to enable the Court to examine their application for amendment or not, it requires to be noted that unfortunately, the amendment application is absolutely silent on this issue. The reason given is that if the proposed amendment is allowed, it would not change the structure of the suit, nor further evidence would require to be led and without effecting change in existing pleadings, more particularly, without effecting change in the body of the plaint, the plaintiffs have prayed to add proposed relief by way of alternate prayer in terms of para 18(1)(A). It is an admitted fact that the plaintiffs, prior to filing of the suit and pending suit, were well aware of the consistent case of the defendant that the defendant has agreed to sale the suit land as per Agreement to Sale dated 09.04.2007 for Rs.36 per sq.ft., therefore, amendment of nature, as sought for, is not to be allowed at the askance of a party and as a matter of course. The Legislature in its wisdom and with a view to curb menace of the litigation being prolonged felt necessity to circumvent same. And with a view to achieve this object, amended C.P.C. vide Code of Civil Procedure (Amendment) Act, 2002 adding proviso to Order 6 Rule 17 of the Code. 12. The term ‘due diligence’ is the idea that reasonable investigation is necessary before certain kinds of reliefs are requested. The term 'due diligence' is specifically used in the proviso to provide a test for determining whether to exercise the discretion in situations of requested amendment after commencement of trial. In other words, the said terms determines the scope of partie’s constructive knowledge, claim and is very critical to the out come of the suit. Thus, party requesting a relief requires to be exercised due diligence and it is a requirement which can never be dispensed with.” (6) Other decisions, though pointed out, the same are almost on the similar line and as such, without going into it, the Court is of the considered opinion that the order passed by the Court below which is under challenge is erroneous and cannot be allowed to stand in the eye of law. (7) Recent pronouncement of one another decision in the case of M. Revanna Vs. Anjanamma (Dead) By LRs & Ors., reported in 2019(3) SCALE 412 , wherein also the observations contained in para 5 are relevant to the issues and as such, the Court deems it proper to reproduce the same hereinafter:- “5. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order VI Rule 17 of the CPC virtually prevents an application for amendment of pleadings from 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.” Conjoint effect of the aforesaid decisions would clearly indicate that the petitioner has made out a strong case to consider the relief’s. 9. As against this, one judgment which has been relied upon by learned advocate Mr. Pathak representing the contesting respondents is dated 27.3.2012 deciding Special Civil Application No.8495 of 2010, in which the Court in different situation, dealt with the issue. A close reading of the said decision suggests that such principle cannot be placed into service ipso facto as the facts of the present case are altogether on facts situation. 10. Having considered minutely the controversy of that case and the principle laid down without having different opinion on such, this Court is of the opinion that in a peculiar background of facts of this case, such principle is not possible to be adopted and applied straightway. In fact, the law on the precedent is quite clear that if there is a change of circumstance, even one additional fact would make a world of difference in applying the precedent and therefore, keeping in view this proposition in mind, the Court is of the considered opinion that the case is made out by the petitioner to call for interference. 11. 11. Resultantly, the impugned order being not sustainable in the eye of law is quashed and set aside and the relief’s prayed for in the petition is granted. The petition stands allowed with no order as to costs.