1 WP 7183.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7183 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. M.D.Narwadkar, Advocate for the petitioner. Mr. S.M.Godsay, Advocate for the respondent. ................................ CORAM : S.V. GANGAPURWALA, J. DATE :27/09/2011 PER COURT : 1. The petitioner is the original plaintiff, who had filed Suit for injunction. The respondent/defendant had filed its Written Statement. Thereafter, issues were framed and the plaintiff led his evidence. After the plaintiff has led his evidence, the defendant had moved an application for amendment in the Written Statement for addition of one ( 1 ) para, by virtue of that the defendant putforth the source of title of Amarsing through whom the defendant claimed his right. The said application is allowed on payment of cost of Rs. 500/- [ Rupees Five Hundred only ]. The plaintiff has assailed the said order in the present Writ Petition. 2. Mr. Narwadkar, the learned counsel for the petitioner 2 WP 7183.2011 submits that the Court could not have allowed the said application in view of the fact that the trial has commenced and the plaintiff had led his evidence. No due diligence has been shown by the defendant in not bringing on record the said facts. It is not the case of the defendant that those facts were not within her knowledge. Such an amendment could not have been allowed in view of proviso to Rule 17 of Order VI of the Code of Civil Procedure. The learned counsel contends that the plaintiff is taken by surprise. Such an amendment which is prejudicial to the interest of the petitioner/plaintiff could not have been allowed. 3. The learned counsel for the respondent supports the order passed and submits that the defence is not being changed. Only one paragraph is being incorporated, which shows the manner in which Amarsing had right over the property through whom the defendant is claiming. 4. To allow the amendment application or not, is the discretion of the Court. The trial Court has exercised its discretion. In view of that the defendant had made an amendment, at the same time opportunity would be required to be given to the plaintiff to adduce the evidence in view of the amendment made in the Written Statement. It does not seem that the same has been granted to the plaintiff. The amendment does not change the nature of the defence. The same is clarificatory in nature elaborating the facts. In view of that, I do not see any error committed by 3 WP 7183.2011 the Court in allowing the said amendment application. However, it is made clear that the petitioner/plaintiff shall be entitled to adduce the additional evidence in view of the amendment made. 5. The Writ Petition is accordingly disposed of with aforesaid observations. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 7183.2011 4 WP 7183.2011