1 wp2554-11.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2554 OF 2011 Navnirman Multi-State Co-op. Sheti Mal Prakriya Karkhana Ltd. .. Petitioner Versus Mr. Narayan Laxman Patil and others .. Respondents Mr. Amit Borkar for the petitioner, Mr. G.N. Salunke for the respondents. CORAM: R. M. BORDE, J. DATED : 18th August, 2011 P. C. 1. Rule. Rule made returnable forthwith. 2. By consent of the learned counsel appearing for the respective parties, taken up for final disposal at the admission stage. 3. Heard Mr. Amit Borkar the learned counsel for the petitioner and Mr. Salunke, the learned counsel for the respondents. 4. The petitioner is raising exception to the order 2 wp2554-11.sxw passed below Exh.43 in Special Civil Suit No.27 of 2009, dated 7th January, 2011, permitting amendment to the written statement filed by the defendants-respondents herein. 5. The petitioner-original plaintiff instituted a suit claiming specific performance of the agreement. The defendants have presented a written statement, controverting the contentions raised in the plaint. It is submitted that the issues are framed in the matter and the plaintiff has presented his affidavit of his oral evidence. The defendants sought time for cross examination and thereafter, moved application for amendment to the written statement. By way of the proposed amendment, the defendants, inter alia, want to withdraw the admissions recorded in Para 3 of the written statement of the original written statement. Thus, by virtue of the amendment, the defendants want to contend that the title of the property does not vest in them. 6. After considering the rival contentions raised by the parties, the trial court proceeded to allow the application and permitted the amendment to the written statement. 7. I have perused the impugned order passed by the 3 wp2554-11.sxw trial court. 8. Mr. Borkar, the learned counsel appearing for the petitioner, vehemently contends that after commencement of of the trial it was not permissible for the trial Court to allow the application tendered by the defendants seeking amendment to the written statement. The counsel for the petitioner placed reliance on the judgment in the matter of Vidyabai and others Vs. Padmalatha and another , reported in (2009) 2 Supreme Court Cases 409. The apex court, considering the ratio laid down in Kalash Vs. Nanhku (2005) 4 SCC 490, has observed that the trial shall be deemed to have commenced when the issues are framed and the case is set down for recoding of evidence. 9. In the instant matter, the issues were framed long back and the plaintiff had tendered his affidavit in lieu of examination-in-chief. Thus, the trial in the matter has commenced as contemplated by the ratio laid down down by the Supreme Court in Vidyabai and others Vs. Padmalatha and another (supra). Provisions of Order 6 Rule 17 of the Civil Procedure Code restricts the powers of 4 wp2554-11.sxw Court to permit amendment after commencement of trial. In paragraph 10 of the Judgment, in the case of Vidyabai & others ( Supra), the Apex Court observed that: “10. By reason of Civil Procedure Code (Amendment )Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a provision to Order 56 Rule 17 of the Code which reads as under: “Provided that no application for amendment shall be allowed after the trial has been commenced, unless the court comes to the conclusion that in spite of due diligence, the partly could not have raised the matter before the commencement of the trial. In Para 19, the Apex Court observed that: “19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.” 10. The respondents -original defendants have not given the details as regards the due diligence nor have stated anywhere that in spite of due diligence, exercised by them they could not have raised the matter before the 5 wp2554-11.sxw commencement of the trial. In the absence of any reason exhibited by the defendants showing their inability to raise the issue before the commencement of the trial it, would not be proper for the trial court to permit the amendment at the late stage. In view of the mandate given by the Apex Court in the Judgment Vidyabai & others (Supra), the Trial Court ought not have been permitted the amendment to the written statement. 11. The order passed by the Trial Court is beyond the jurisdiction and therefore needs to be quashed and set aside. 12. In the result, the writ petition is allowed. 13. The order passed below Exh.43 in Special Civil Suit No. 27 of 2009, dated 7th January, 2011, is quashed and set aside. 14. Rule is made absolute accordingly. 15. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.)