1 wp1901.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1901 OF 2011 WITH WRIT PETITION NO. 1902 OF 2011 Harvindersingh S/o Raghuveersingh ..PETITIONER -VERSUS- Lalit S/o Ramgopal Rathi and another ..RESPONDENTS ..... Mr.A.D. Kasliwal, Advocate for petitioner. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 25TH APRIL, 2011. PER COURT : 1. This Court has issued notice for final disposal on 15th March, 2011 and stayed further proceedings in Special Civil Suit no. 105/2007. Though, the respondents were served, they have chosen not to appear. There was no appearance on 13th April, 2011 and hence time till today was given. But even today, there is no appearance. 2. Learned counsel states that the order passed below Exhibit-80 on 08.02.2011 permitting the respondents-plaintiffs to amend their plaint is questioned in Writ Petition no. 1901/2011. Order of same date passed below Exhibit-82 permitting them to 2 wp1901.11 implead alleged purchasers under Order 1 Rule 10 of the Civil Procedure Code is questioned in Writ Petition no. 1902/2011. 3. According to him, plaint is filed in March, 2007 and reply opposing prayer for temporary injunction was filed on 11.07.2007. In that reply itself, it was mentioned that before institution of suit, the property was already transferred by the present petitioner. Inspite of that say, and similar disclosure in written statement which came to be filed in January, 2008, the respondents-plaintiffs took no steps either to amend their plaint or to add subsequent purchasers for a period of about four years. The applications on which the impugned orders came to be passed have been then filed and the purchasers in the said sale deeds are sought to be added as parties. The prayer is to quash and set aside that sale deed is also being added. 4. Learned Counsel invites attention to the consideration of impugned orders to urge that the latches and negligence apparent on the record has not been looked into and the reasons given by the trial Court in this respect shows total non-application of mind. 5. With the assistance of the learned Counsel, I have gone through papers and find that the dates mentioned above do not 3 wp1901.11 appear to be in dispute. It appears that in reply to Exhibit-5, the date of sale deed was mentioned as 20th January, 2007 and the respondents-plaintiffs got knowledge of correct date i.e. 29.01.2007 after the enquiry. However facts show that after receipt of that reply in July, 2007, the applications on which the impugned orders are passed are filed in January, 2011. Trial Court has found that though in reply to Exhibit-5 these dates were disclosed, Exhibit-5 was not required to be heard and therefore, the respondents-plaintiffs did not come across that date of sale deed. The logic can not be accepted. Exhibit-5 was filed by the respondents-plaintiffs and it was their choice whether to press it or withdraw it. They chose not to withdraw it but sought its consideration along with Exhibit-1 i.e. main suit. In other words, Exhibit-5 and relief of temporary injunction therein was rendered infructuous because of their election. It is also obvious that the choice was made after due deliberation and hence, it can not be accepted that they had not aware of the said date of sale before institution of plaint. 6. Amended provisions of Order 6 Rule 17 of the Civil Procedure Code permit the amendment if it is on account of subsequent events or then when such events despite due diligence could not have been added. Here, in the present case, it is very 4 wp1901.11 clear that all the events were already known to the respondents- plaintiffs. 7. I therefore find the impugned order passed below Exhibit-80 on 08.02.2011 without jurisdiction. Same is accordingly quashed and set aside. Application at Exhibit-80 is rejected. 8. For the same reason, the application at Exhibit-82 is also rejected and the order dated 08.02.2011 passed upon it is quashed and set aside. 9. Rule made absolute accordingly. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp1901.11