5. wp 8297-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8297 OF 2010 Shankar Laxman Tidake .. Petitioner Vs Shivaji Laxman Bhandure & Ors .. Respondents Mr. Shriram S. Kulkarni for the Petitioner Mr. S.D. Shinde for Respondent Nos. 1 and 2 CORAM : D.G. KARNIK, J. DATE : 22nd JUNE, 2011. P.C.: 1. Heard. 2. The petitioner ( original defendant no. 4 ) takes exception to the order dated 28th July 2010 passed by the Civil Judge, Senior Division allowing the application of the respondents / original plaintiffs for amendment of the plaint. 3. Learned counsel for the petitioner submitted that on the date on which the suit was posted for recording of an evidence, the plaintiffs applied for adjournment on the next date, instead of filing an affidavit in lieu of examination-in-chief, applied for amendment of the plaint. Therefore, the amendment could not 1 5. wp 8297-10.doc have been allowed. Proviso to Order VI, Rule 17 of the Code of Civil Procedure says that the application for amendment shall not be allowed after commencement of the trial except in circumstances mentioned therein. 4. Merely fixing of the suit for recording of evidence is not a commencement of a trial. The trial commences after commencement of recording of examination-in-chief either in person or by way of affidavit in lieu of examination-in-chief. Since the application for amendment was made prior to the commencement of the trial, it does not fall foul of proviso to Order VI, Rule 17 of the Code of Civil Procedure. 5. Perusal of the application for amendment shows that it was only for amending the description of the suit property. The amendment was necessary for the purpose of deciding the real matter in controversy between the parties and real describe the subject matter of the suit. No exception can be taken to the order passed. Writ petition is rejected summarily. [ D.G. KARNIK, J ] 2 5. wp 8297-10.doc 3