IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.7091 of 2006 Shri Balkrishna Barshya Sutar ..Petitioner vs. 1. Shri Baliram Undir (Uttam) Patil and others ...Respondents Shri Rajesh Karekare i/b Shri Amol P.Mhatre for petitioner. Shri A.Y.Sakhare, Sr.Counsel i/b Shri Shivraj Patil for respondent no.1. CORAM: S.C.DHARMADHIARI J. CORAM: S.C.DHARMADHIARI J. CORAM: S.C.DHARMADHIARI J. 3rd December,2007 3rd December,2007 3rd December,2007 P.C. P.C. P.C. 1. The petitioner/original plaintiff has filed Reg.Civil Suit No.11 of 2003 claiming permanent injunction against the present respondent nos.1 and 2 restraining them from making any construction on the suit property. 2. The said suit was filed on 16th January, 2003. The defendants appeared on writ of summons being served and filed the written statement. It appears that the issues were framed and after necessary directions issued the petitioner/plaintiff filed his affidavit in lieu of examination in chief and the matter was placed for his cross examination. 3. At that stage, the application for amendment of the plaint was made and the petitioner prayed by this application dated 13th July, 2006 that during pendency of the suit, original defendant nos. 1 and 2 have carried out unauthorised construction of a structure connected to the pillar which was erected on the suit property and because of the erection and construction of shopping complex the same would be required to be removed so as to leave it open for the petitioner to have his right to use the road. 4. That application was opposed on several grounds including that Order 6 Rule 17 (proviso) does not permit amendment of claim unless the Court is satisfied that the matter could not have been raised before commencement of the trial. 5. The application is rejected on the ground that the particulars of the alleged constructions have not been set out. The application and pleadings are not specific but vague and, therefore, the application is not tenable. The reasoning in that behalf is in para 6 on page 28 which reads thus: "Therefore, I have gone through the facts and circumstances of the case and documents filed on record. After going through a record it shows that already issues are framed in this suit by my learned predecessorl on 12.12.2003 and then the plaintiff filed his affidavit of examination in chief on record on 28.11.2005. Therefore, the record shows that the suit is already fixed for recording evidence i.e. hearing. I have gone through a provision of O 6 R.17 of C.P.C. The sub part of R 17 states that "provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." Considering this legal provision the duty caste upon plaintiff to satisfy a Court that defendant make a construction in suit property after filing a suit and before starting a hearing of this suit. On this point after going through a pleading in application, it shows that the said pleading is not specific and vague. It is obligatory part on plaintiff to show and stated specific date on which a defendant made a construction. But he failed in it. Therefore, in view of the said provision of O 6 R 17 according to me this application is not tenable. According to me the relief claimed by plantiff for amending a relief clause is also not tenable as per law because a plaintiff has not sought any declaration to that effect that the construction carried out by defendants is unauthorised and illegal. Therefore, in absence of the said declaration the proposed prayer cannot be tenable or legal." 6. The learned Counsel appearing for the petitioner/plaintiff assails this order on the ground that once the construction has commenced, during the pendency of the suit, there is no occasion for the Court to apply the proviso. The matter could not have been raised before the commencement of trial in as much as the construction itself has commenced and completed during the pendency of the suit and more precisely after institution thereof. He further submits that merits of the application could not have been gone into. Even if the amendment did not satisfy the requirement as is observed by the learned Judge, then, that is merits of the case. Ultimately, the relief would be denied if the petitioner is unable to give particulars. However, at this stage, the application could not have been rejected. 7. Shri Sakhare, the learned Senior Counsel appearing for original defendant nos. 1 and 2 submits that the reasoning of the Trial Court need not be disturbed and interfered with. No case is made out for interference under Article 227 of the Constitution of India once a vague application is dismissed. 8. In my view, in the peculiar facts of this case, the Court below was not right but indeed in error in applying the proviso of Order 6 rule 17. The Hon’ble Supreme Court in the latest decision reported in 2006(5) All MR ( S.C.) 107 (Baldev Singh and others Vs. Manohar Singh and Anr.etc.) has observed that the word "trial" in the proviso must be given restricted meaning. It includes several stages and the Supreme Court has held that recording of evidence is one such stage. In para 15 of the said report, the Hon’ble Supreme Court observed thus: "15. Before we part with this order, we may also notice that proviso to Order 6, Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6, Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6, Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings." In the present case, apart from the above, the cross examination of the plaintiff is yet to commence. That apart, events during the pendency of the suit have been placed on record. The plea raised is that the construction is commenced and completed during the pendency of the suit and more particularly, after its institution. 9. In such circumstances in the facts peculiar to this Court, there was no warrant in rejecting the application by applying the proviso. The Court below failed to notice that the original plaint contains specific pleading that the defendants have carried out some construction. There is also a reference to a road which is used. The prayer in the earlier unamended plaint is to demolish the pillars erected. In para 9 the plaintiff has expressed his apprehension that the construction may be carried out further. In the amended plaint, he seeks to bring on record the extent of construction which is now carried on the pillars. It is apparent despite best efforts, the plaintiff could not have placed on record the extent of construction. In such circumstances, assuming that all details are not set out in the amendment application, that is no ground to reject the same. This is a matter touching the merits of the controversy. Ultimately, the petitioner/plaintiff may not succeed in getting the relief but he cannot be precluded from incorporating the events subsequent to the institution of the proceedings and claim relief in that behalf. Therefore, the impugned order is clearly unsustainable in law. This is not a case where the Court has exercised its discretion fairly but a case of patent illegality. One of the objects of amendment being allowed is to obviate the multiplicity of proceedings. In such circumstances, I am of the view that the amendment application deserves to be granted. 10. Accordingly, the petition succeeds. The impugned order is quashed and set aside. Prayer for amendment of the plaint is granted. Amendment to be carried out within two weeks from today. Copy of the amended plaint be served within two weeks thereafter. Additional written statement within a period of four weeks from the date of receipt of amended plaint. 11. It is clarified that all pleas including that the claim of the present petitioner/plaitniff as sought to be incorporated is barred by limitation are kept open and Trial Court to consider the same uninfluenced by any observations in its earlier order so also that of the present order. Petition is accordingly allowed. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)