1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Writ Petition No. 4795/2007 Yadavrao s/o Santosh Ingole vs. Khushal s/o Mahadeo Ingole and others. ------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. CORAM : A.P. LAVANDE, J. DATED : 23/07/2008. Heard Mr. Balpande, learned counsel for the petitioner and Mr. Khati, learned counsel for respondent nos. 1 to 5. None for other respondents. By this petition, the petitioner challenges the order dated 17.9.2007 passed by Civil Judge, Sr. Dn. Nagpur in Special Civil Suit No. 725/1997 by which the application for amendment filed by the petitioner, who is original defendant no.4 in the said suit has been dismissed. Respondents 1 to 5 filed suit against the petitioner and other respondents seeking partition, possession and cancellation of sale deed in the year 1997. The present petitioner along with other defendants filed written statement in the year 2000. Thereafter the evidence of the plaintiffs was over and defendants 1 and 2 examined themselves in support of their case. In September 2007 the present petitioner filed an application seeking 2 amendment which has been dismissed by the impugned order on the ground that the petitioner has not exhibited due diligence for filing the amendment application and he could have taken defence in the amendment application before commencement of the trial. Learned counsel for the petitioner submitted that the trial Court ought to have allowed the amendment application. He further submitted that the trial Court has erred in dismissing the application. In support of his submissions, he placed reliance upon the judgments in Usha Balashaheb Swami and others v Kiran Appasao Swami and others : 2007 (5) Mh.L.J. 593 and Sampath Kumar vs. Ayyakannu and another : (2002) 7 SCC 559. Per contra, Mr. Khati, learned counsel for respondents 1 to 5 supported the impugned order. Having considered the submissions made by learned counsel for the parties and having perused the record, I find no ground to interfere with the impugned order. In view of proviso to Order VI Rule 17 of the Code of Civil Procedure, the petitioner has not made out any case for amendment at a belated stage when the evidence of the plaintiff and that of defendant nos. 1 and 2 was over. No doubt, amendment to the written statement has to be allowed liberally than the amendment to the plaint but at 3 the same time in view of proviso to Order VI Rule 17 of the Code of Civil Procedure, the plaintiff has to make out a case of due diligence on his part and it has not been made out in the present case. The authorities relied upon by the petitioner do not advance the case of the petitioner since in none of those cases, the amendment was sought after trial commenced. Hence, I find no ground to interfere with the impugned order. Hence, the petition is rejected. Interim order dated 19th October 2007 stands vacated. The parties shall appear before the trial Court on 20th August, 2008 at 11.00 a. m. JUDGE Ambulkar.