1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.5228 OF 2009. Mansukhlal S/o Anandram Gugle, Age 72 years, Occ.Business, R/o Hawa-Bungala, 9 Gugle Niwas, Lonawala, Tq. Mawal, Dist. Pune. through G.P.A. holder Shri Bhushankumar S/o Subhashlal Changedia, Age 26 years, Occ. Business, R/o Khist Galli, Ahmednagar, Dist. Ahmednagar. ... Petitioner. Versus 1. Naresh S/o Pannalal Mutha, Shr 37 years, Occ.Business, 2. Paresh Navneetlal Gandhi, Age 34 years, Occ.Business, Both R/o 3436, Khist Galli, Ahmednagar, Dist.Ahmednagar. ... Respondents. ... Mrs.S.S.Jadhav, advocate for the petitioner. Mr. V.J.Dixit, Sr.counsel instructed by Shri P.S.Pawar, advocate for the REspondent Nos.1 and 2. ... CORAM : V.R.KINGAONKAR,J. Date : 05.02.2010. 2 PER COURT 1. By this petition, the petitioner challenges order rendered by learned District Judge-II, Ahmednagar on application (Exh.40) in appeal bearing (RCA No.116/2008), whereby and whereunder the amendment sought by the Respondents, who are original defendants, was allowed. 2. The petitioner is original plaintiff who had filed suit (Spl.C.S.No.163/2006) for declaration and injunction. The dispute relates to a house property which was originally owned by one Alamchand Mutha. It appears that he was father of vendor of the plaintiff i.e. petitioner. The petitioner's father purchased the house property from said Pannalal by registered sale deed while the petitioner was minor. Basantibai was cousin of the petitioner's father. 3. The petitioner's case is that due to fiduciary relationship and having regard to need of Basantibai, his father allowed her to occupy 3 the suit house. She adopted the Respondent No.1. She died in the year 1985. Still, however, the Respondent No.1 continued to occupy the suit house property. The petitioner's contention before the trial Court was that the license was terminated and thereafter possession of the Respondents became unauthorised. It appears that Basantibai had obtained a gift-deed from father of the petitioner. The petitioner challenged the gift deed on the ground that it was brought about illegally, by exercising undue influence and was not a valid document. He, therefore, sought declaration that the gift-deed was void and inoperative, further sought recovery of possession and injunction. 4. The case of the Respondents, in short, was that the suit was barred by limitation. It was submitted that gift-deed could not be challenged after period of three (3) years. They submitted that the gift-deed in favour of Basantibai was legal and valid. They further submitted that they were entitled to continue possession as owners being legal heirs of 4 deceased Basantibai because she had become owner on the basis of gift-deed which was purportedly executed by deceased Anandram on 24.10.1983. They further submitted that since the gift-deed was registered document, knowledge thereof could be imputed to the petitioner and as such the said document could not have been challenged after lapse of twenty two (22) years. They denied that Basantibai was inducted into possession of the house property as a licensee on account of her blood relationship with father of the petitioner. 5. The suit was decreed by the trial Court. The Respondents preferred appeal (RCA No. 116/2008). They submitted an application (Exh. 14) seeking amendment of the Written Statement. They contended that they were not knowing the Court work and had engaged one novice advocate by name Shri S.T.Joshi. The said advocate was not able to draft the written statement appropriately and there were some statements made half- hazardously. They submitted that alternate plea of prescriptive title was not categorically raised though it was contended that the suit was 5 barred by limitation. They wanted to introduce the plea of acquiring title by prescription due to continuous possession for more than 12 years, openly and adversely by Basantibai. The application was strongly opposed by the petitioner. 6. The learned District Judge allowed the amendment application by the impugned order. The learned District Judge held that the Respondents (defendants) had denied ownership of the petitioner and the amendment was rather clarificatory in nature. He held that the application could not be rejected only on the ground of delay. 7. Heard learned counsel. 8. At the threshold, the conduct of the Respondents may be noticed. In their application (Exh.14) they attributed lack of knowledge to their advocate. They stated that plea of adverse possession was not specifically raised due to the fault of the advocate. Impliedly, they suggested 6 that they had given instructions to the advocate but such plea was not elaborately raised while drafting the Written Statement. This conduct of the Respondents is not considered by the learned District Judge. The application does not show any tangible reason for omission to raise the plea of adverse possession except and save that the advocate was novice and, therefore, could not appropriately draft the pleadings. There is no scintilla of material to infer that their advocate was unable to prepare the written statement in accordance with their instructions and law. It is also not clear from the record as to what was the standing of the advocate appointed by them. Needless to say, such vague explanation regarding omission to raise such pleadings could not have been readily accepted by the District Judge. 9. Coming to the merits of the matter, it is important to notice that the suit was filed in 2006 and naturally, therefore, provisions of Order VI Rule 17 of the C.P.C. as amended by the Amendment Act 2002 was applicable. The proviso 7 appended to Rule 17 of Order VI reads as follows : "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." The proviso creates legal bar in allowing the amendment after the trial has began. It is well settled that trial commences when the issues are framed. The application was obviously not filed before commencement of the trial. There was no good explanation to infer that inspite of due diligence, the Respondents could not have raised the matter before the commencement of the trial. The learned District Judge did not give thought to the amended provision of Order VI Rule 17 of the C.P.C. There is no whisper in the impugned order about the inability of the Respondents to raise such amended plea inspite of due 8 diligence. Needless to say, the application could not be taken out of the bar created under the proviso nor there was such categorical explanation stated in the application itself. In view of this infirmity, the impugned order is quite contrary to the provisions of the law and is perverse. It is not necessary, therefore, to examine whether the proposed amendment was mutually destructive to the earlier pleadings or it was merely inconsistent with the earlier pleadings and, therefore, could have been allowed. 10. Considering the foregoing reasons, the petition is allowed. The impugned order is set aside. Rule made absolute accordingly. No costs. (V.R.KINGAONKAR,J.) asp/office/wp522809