Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO.7146 of 2002 Dattatraya Pandurang Bhoite ...Petitioner V/s. Biru Savala Khuspe, since deceased and ors. ...Respondents Mr.V.V.Purwant for the Petitioner Mr.K.B.Sonwalkar for the Respondent Nos. 2 & 3 CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 15th April, 2008 : 15th April, 2008 : 15th April, 2008 P.C. . Heard Mr.Purwant, the Learned Counsel for the Petitioner-defendant no.1. The Learned Civil Judge, Junior Division, Koregaon was pleased to decree Regular Civil Suit No. 260/1985 as per its Judgement and order dated 2-5-1998 and the defendant no.1 has challenged the same in Regular Civil Appeal No. 234/1998. 2. In the said pending Appeal the defendant no.1 filed an application at Exh. 43 seeking amendment in the Written-Statement filed in Regular Civil Appeal No.234/1998 and the said application has been rejected by the Lower Appellate Court on 13-9-2002. Hence,this petition. 3. This Petition was dismissed in default on more than 2 one occasions and it is noted that the Written-Statement at Exh.21 was filed by defendant nos. 1 to 3 on 30-12-1985 and about 17 years later the defendant no.1 sought leave to amend the same before the Appellate Court. The Appellate Court noted that the amendment sought was changing the nature of pleadings originally set out before the trial Court and a new case was sought to be made. In addition, as per the amended provision of Order VI Rule 17, no application for amendment can 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. 4. I have perused the application at Exh.43 and it is clear that the Petitioner by the proposed amendment was seeking to change the pleadings in the original Written-Statement and more particularly on the partition of the shares amongst all the defendants. The Lower Appellate Court was, therefore, justified in rejecting the said application and the explanation given for filing the application for amendment so belatedly was far from satisfactory. Hence, there is no case made out to cause interference in the impugned order in the petition under Article 227 of the Constitution. 3 Consequently, the Petition is rejected summarily. Appeal be decided expeditiously if still pending. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]