1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1952 OF 2009 Balasaheb s/o Nanasaheb Barhate, R/o-Barhate Galli, Manwat, Tq-Manwat, Dist-Parbhani. ...PETITIONER. VERSUS 1) Bajirao s/o Nanasaheb Barhate, R/o-Sadola, Tq-Majalgaon, Dist-Beed. 2) Madhukarrao s/o Nanasaheb Barhate, R/o-As above. 3) Sindhubai w/o Panditrao Borade, R/o-Patoda, Tq-Selu, Dist-Parbhani. 4) Sumanbai w/o Dnyanoba Bhambale, R/o-Sawangi, Tq-Jintur, Dist-Parbhani. 5) Kusumbai Prabhakar Barhate, R/o-Manwat, Tq-Manwat, Dist-Parbhani. 6) Sudhakar s/o Prabhakar Barhate, R/o-Manwat, Tq-Manwat, Dist-Parbhani. 7) Meera w/o Samadhan Jadhav, R/o-Umrad, Tq-Sindhkhed Raja, Dist-Buldhana. 8) Vishnu s/o Bajirao Barhate, R/o-Sadola, Tq-Majalgaon, Dist-Beed. 2 9) Jagannath s/o Bajirao Barhate, R/o-Sadola, Tq-Majalgaon, Dist-Beed. 10) Kamalbai Bajirao Barhate, R/o-As above. 11) The Sub Registrar Office, Majalgaon, Tq-Majalgaon, Dist-Beed. 12) Sunil s/o Prabhakar Barhate, R/o-Barhate Galli, Manwat, Tq-Manwat, Dist-Parbhani. ...RESPONDENTS. ... Mr.S.B. Bhapkar Advocate for Petitioner. Mr.V.D. Salunke Advocate for Respondent Nos.1, 8 to 10. Mr.P.B. Rakhunde Advocate for Respondent Nos. 2 to 6 and 12. ... CORAM: K.K. TATED, J. DATE : 30TH SEPTEMBER, 2009. PER COURT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, matter is taken up for final hearing at the stage of admission. 3 2. Heard learned counsel for the Petitioner, learned counsel for Respondent Nos. 1, 8 to 10 and learned counsel for Respondent Nos. 2 to 6 and 12. By this Petition under Article 227 of the Constitution of India, the Petitioner - original plaintiff challenges the order dated 23rd February, 2009 passed by Civil Judge, Senior Division, Majalgaon below Exhibit 46 in Regular Civil Suit No.219 of 2007 allowing the application filed by original defendant Nos. 1, 2, 8 to 10 for amendment of written statement under Order 6 Rule 17 of the Code of Civil Procedure. It is the case of the Petitioner - original plaintiff that he filed Regular Civil Suit No. 219 of 2007 in the Court of Civil Judge, Senior Division, Majalgaon for partition and separate possession of the ancestral property. In the said suit the defendant No.1, 9 to 10 filed their written statement on 16th November, 2007. As the defendant No.8 failed to file his written statement, 'no written statement' order came to be passed on 22nd January, 2008. It is the case of the Petitioner that without filing application for setting aside the no written statement order dated 22nd January, 2008, the original defendant No.8 along with other defendants filed 4 application for amendment of written statement and same came to be allowed by the impugned order dated 23rd February, 2009. Learned counsel for the Petitioner submitted that the Petitioner - original plaintiff filed his affidavit of evidence on 15th September, 2008 and thereafter the matter posted for cross examination. Learned counsel for the Petitioner submitted that after commencement of the trial, the trial Court allowed the application for amendment of written statement and it is against the well settled principle of law. In support of his contention, learned counsel for the Petitioner relied on the Authority in the matter of Vidyabai and others vs.Padmalatha and another, reported in 2009 (1) ALL M.R. Page 471. 3. On the other hand, learned counsel for Respondent Nos. 1, 8 to 10 in support of impugned order, submitted that the trial Court considered the facts and circumstances of the present case and allowed the application for amendment, which is not going to affect the interest of the Petitioner - original plaintiff. He pointed out that in Para 10 of the Plaint, the Petitioner referred to will. He further pointed out that 5 it is the case of the Petitioner that on the basis of false will, the Respondents got transferred the suit property in their name by mutation entry No.961 dated 14th February, 1990. Original defendants pleaded in Para 12 that in order to save the land from ceiling and as per wish of Petitioner's grand father, recorded the name of defendant No.1 for 10 Acres out of the suit land Gut No.173. But those submissions were not correct and therefore they made application for amendment of the written statement for deleting para 12 and substituting the new Para as stated in their application for amendment of written statement. It is the contention of learned counsel for Respondent Nos. 1, 8 to 10 that the said amendment is not going to affect the case of the Petitioner - original plaintiff at all. 4. In any case, it is admitted fact that the Petitioner - original plaintiff filed his affidavit of evidence on 15th September, 2008 and thereafter the Respondents filed application 15th October, 2008 for amendment of written statement i.e. after commencement of trial. The Apex Court in the matter of Vidyabai and others vs.Padmalatha and another (supra) specifically held that 6 application for amendment of written statement should not be allowed after commencement of the trial. Para 7 and 8 of the Judgment, reads as under: "7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order 6, Rule 17 of the Code, which reads as under: "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." It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a 7 conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial." "8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to 'commencement of proceeding'." 8 5. Considering the above mentioned facts and circumstances, it is clear that the Respondents filed their application for amendment of written statement after commencement of the trial, which is not permissible as per the amended provisions of the Code of Civil Procedure. Even order of "No W.S." in in force against original Defendant No.8. Therefore, Writ Petition is allowed. Rule is made absolute in terms of prayer clause (C) which reads as under: "(C) To quash and set aside the impugned order dtd. 23/02/2009 passed below Exhibit-46 in RCS No.219/07 by C.J. S.D. Majalgaon." [K.K. TATED, J.] asb/SEPT09/wp1952.09