wp10974.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 10974 OF 2010 SHIVAJI GOPAL DANAKE AND ORS. ... PETITIONER. VERSUS SUKSHALAI MAHADU MAGAR. ... RESPONDENT ... Advocate for Petitioner(s) : Mr. Vivek V Bhavthankar Advocate for Respondent(s) :Mr. Dharashive M.L. ... CORAM : S.S. SHINDE, J. Dated: August 30, 2011 PER COURT: Heard learned counsel for the parties. 2 This writ petition has been filed challenging the order dated 31st July, 2010 thereby allowing the application of the respondents at Exh.D. 3 The learned Counsel for the petitioners submits wp10974.10 2 that the trial Court allowed the application for amendment at the stage when the matter is fixed for arguments. According to the learned Counsel for the petitioner, in view of the provisions of Order VI, Rule 17 proviso of the Code of Civil Procedure, the trial Court should not have allowed the application filed by the respondents at the stage when the matter is fixed for arguments. The learned Counsel also invited my attention to the reasons recorded by the trial Court and submitted that by recording cryptic reasons, such application for amendment came to be allowed. There are hardly any reasons given by the trial Court while allowing the application for amendment. 4 The learned Counsel for the respondent submits that to set at rest the controversy involved in the suit, it was necessary to file such an application. Inadvertently, those persons were not added as defendants and by way of filing application for amendment, prayer was made to add those persons as party defendants. Therefore, according to the wp10974.10 3 learned Counsel for the respondent, this Court may not interfere with the impugned order in writ jurisdiction. 5 The learned Counsel for respondent further submits that as per the provisions of Order I, Rule 10 of the Code, at any stage of the proceedings of the suit, parties can be added as defendant or plaintiff. 6 I have given due consideration to the rival submissions of the parties. For the reasons assigned in para 14 of the impugned order, the trial Court has allowed the application of the respondent herein i.e. original plaintiff. Para 14 of the impugned order reads, thus: "14 Now, after taking into account, the nature of amendment sought in respect of non-joinder of necessary parties and properties, which are the crux of the matter. As such, it is necessary to give full opportunity for the parties to prove their case. If the application is allowed, it will wp10974.10 4 not cause any irreparable loss to the defendants, as it is still the defendants are having an opportunity to defend the case. Though, the matter is fixed for final argument and the application for amendment is filed at later stage, is not a reason to reject the application. Even permission can be granted to make amendment at any stage of proceeding, providing no prejudice would be caused to the defendants by granting such application." 7 Bare perusal of para 14 of the order would make it clear that the trial Court has not followed the mandate of the proviso to Rule 17 of Order VI of the Code. It is not permissible to the Court to allow the application for amendment unless the Court comes to the conclusion that in spite of due diligence the parties could not have raised the matter before commencement of the trial. Upon perusal of the application of the respondent filed for amendment, it is abundantly clear that the respondent himself has mentioned in the application that inadvertently he could not bring such matter at the appropriate stage wp10974.10 5 of the trial. Therefore, it is crystal clear that in an application which was filed by the respondent, no any due diligence was shown. It is not in dispute that the suit is fixed for final argument. 8 In that view of the matter, in my opinion, the order impugned in this petition cannot be sustained. Therefore, the impugned order dated 31st July, 2010 passed by the 7th Jt. C.J.J.D., Latur below Exh.51 in R.C.S. NO.379/2006, is quashed and set aside. The trial Court shall proceed with the suit and dispose of the suit, as expeditiously as possible. Writ Petition is allowed to the above extent and disposed of. (S.S. SHINDE, J.) PLK/*