1 1. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.390/2010. (Mahendra Suresh Dalvi Vs. Ajit Simratmal Bora and Ors.) ----------------------------------------------------------------------------------------------------------- Office notes, office Memoranda of Coram,appearances, Court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ----------------------------------------------------------------------------------------------------------- Mr.Ajit S Zarekar, Adv. for petitioner; Mr.LB Palod, Adv. for Respondent Nos. 1 & 2. __ CORAM : K.U.CHANDIWAL ,J. DATE : 27 th September, 2010. ... 1) Heard finally. 2) Grant of application moved for amendment by the plaintiffs is questioned by the defendants. 3) Though the order dated 23.11.2009 passed by the learned 5th Joint Civil Judge, S.D.,Ahmednagar illustrate, there was no challenge to the said application from the defendants as to whether such amendment, seeking mandatory injunction and other details, as indicated in the application, could have been entertained. The position of law is illustrated by virtue of amendment carried under Order VI Rule 17 of CPC and proviso thereto. The Apex Court in 2009 (1) All M.R. 471 ( Vidyabai and 2 Ors. Vs.Padmalatha and Anr.), dealing with the identical situation, has indicated the scope of entertaining the amendment application and the requirements to be complied with in the application. The requirement, providing solace to the person seeking amendment is, he has to indicate in the application that, in spite of due diligence, the party could not have raised the matter before the commencement of trial. There is no such eventuality that has emerged in the present case. It is a matter of record, way back, by filing a reply dated 4.4.2001, the defendant has resisted the contention of the plaintiff. The plaintiff asserts to be equipped with injunction and also submitted that after the injunction, iron bars are fixed in the disputed property. The nature of amendment, in the fact situation, could not have been entertained as it splits the merits and scope indicated under Order VI Rule 17 of CPC and particularly, proviso, having come into force effective from 1.7.2002. 4) The learned Counsel for the plaintiff/respondent placed reliance to the Judgment of the Apex Court in AIR 2002 SC 559 ( Prem Bakshi and Ors. Vs. Dharam Dev and Ors.). In that matter, 3 the amendment was not before His Lordship as the Judgment is dated 9.1.2002. The said judgment cannot be made applicable. 5) Writ Petition is allowed. Amendment effected is to be deleted. No costs. (K.U.CHANDIWAL) JUDGE bdv/