KBP 4053-08.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4053 OF 2008 Rajesh Dhanraj Manshani ..Petitioner Vs. Shashi Ramchandra Jadhav ..Respondents ......... Mr.M.S.Karnik, for petitioner. Mr.M.M.Sathaye, for respondent. ......... CORAM : A.S.OKA, J.. DATE : 9 th SEPTEMBER, 2009. P.C. : 1] Heard learned Counsel for the parties. 2] Considering the narrow controversy involved, the petition is taken up for final disposal at the stage of admission. The petitioner original plaintiff applied for amendment of the plaint for incorporating money claim of damages/compensation. The said application has been rejected on the ground that the trial has commenced. 3] In the case of Vidyabai & others V/s. Padmalata and anr. [2009(4) Mh.L.J. 30] the Apex Court has held that only in a case where exceptional reasons are set out or exceptional circumstances are shown, the Court has jurisdiction to allow the amendment to the pleadings after the trial commences. The Apex Court held that there is always a condition precedent under the proviso to Rule 17 of Order 6 of the Code of Civil Procedure, 1908 and if the same is not satisfied, the amendment cannot be allowed. 4] The learned Counsel for the petitioner states that the petitioner may KBP 4053-08.sxw 2 be permitted to withdraw the application on which the impugned order is passed with liberty to file a fresh application containing proper reasons and grounds. He states that the petitioner is desirous of making out a case for permitting an amendment even after the trial has commenced. The said prayer is opposed by the learned counsel for the respondent. 5] In my view, considering the fact that the prayer for damages is already incorporated in the original plaint, a liberty deserves to be granted to the petitioner to file an appropriate application. It is obvious that the respondent is entitled to oppose the fresh application, if any, on all permissible ground. 6] Hence I pass the following order:- (a) The impugned judgment and order dated 13 th February, 2008, is hereby set aside. (b) The petitioner is permitted to withdraw the application at exhibit 40 with liberty to file a fresh application for same relief. If such an application is made by the petitioner within six weeks from today, the trial Cort shall decide the same on its own merits. (c) Writ Petition is partly allowed in the above terms. ( A.S.OKA, J. )