Spl.C.S.No.226/2005. 1. Ratnakar Vitthal Patvardhan and etc.1 ...

..4.. Spl.C.S.No.226/2005, Exh.113to satisfied that, despite due diligence they could not brought theproposed facts on record before the commencement of the trial.8. Much has been argued from the side of learned counsel forthe defendants in respect of “commencement of the trial” and learnedcounsel has also placed reliance on the case of Baldev Singh V/s.Manohar Singh cited supra. However, after going through the case law itis revealed that, this case law is also not helpful to the defendants. In theabove case the Hon'ble Apex Court in Para­17 of the judgment held that,“That apart, commencement of trial as used in provisoto Order­6 Rule­17 in the Code of Civil Procedure must beunderstood in the limited sense as meaning the finalhearing of the suit, examination of witnesses, filing ofdocuments and addressing of arguments.”In the case before me, as mentioned above, the evidence of the plaintiff isalready over and the defendant no.1 has also filed an affidavit of hisexamination­in­chief. Therefore, the trial has already been commencedin this matter. In this regard, reference may be made to the case ofVidyabai & Ors. V/s. Padmalatha & Anr. reported in 2009(1) All M.R.471, wherein the Hon'ble Apex Court held that, filing of an affidavit ofexamination­in­chief of the witness would amount to commencement oftrial under Order­6 Rule­17 of the Code of Civil Procedure. Therefore, thecase law cited by the learned counsel for the defendants is not helpful tothe defendants.9. Learned counsel for the defendants has also cited the case ofB.K.N.Pillai, V/s. P.Pillai cited supra I have gone through it. Its facts,circumstances and issue involved in it are entirely different than the casebefore me. It is well settled law that, the defendants can raisedinconsistent plea in the written statement. In the said case it was heldthat, application for amendment can not be rejected merely on theground of delay particularly when the amendment is not prejudicial tothe other side. However, it is not so in the case before me. In the case athand the trial is already been commenced and defendants failed to