1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.6904 OF 2007 Yadav Vithoba Shelke since deceased through his L.Rs. Mohan Yadav Shelke and another ... Petitioners. Versus Abhay Shantilal Mutha and others ... Respondents. ... Mr.P.V.Barde, advocate for the petitioners. Mr.A.M.Gholap, advocate for the Respondent Nos. 1,2, 4 to 6. ... CORAM : V.R.KINGAONKAR,J. Date : 01.07.2009. PER COURT 1. Heard. 2. By this petition, the petitioners challenge order dated 18th October, 2007, rendered by learned Civil Judge (S.D.), 2 Ahmednagar, in Special Civil Suit No.675/94 on amendment application (Exh.85), whereby the proposed amendment was allowed. 3. The Respondent Nos.1 and 2 filed a suit (Spl.C.S.No.675/94) for specific performance of an agreement of sale. They submitted that originally Jagannath Karale, was owner of the land in question bearing S.No.112/2 admeasuring 2 hectares 37 Ares. They asserted that they agreed to purchase 1 hectare 21 Ares land from the legal heirs of said Jagannath Karale. Still, however, the Respondent did not execute the sale deed though demanded in terms of the agreement of sale. The defendant Nos.1 and 2 executed an agreement of sale dated 24.5.1994 after the inter se dispute between the defendants was brought to an end as a result of withdrawal of the suit bearing (RCS No.705/1987). 4. The Respondent Nos.1 and 2 (plaintiff) filed application (Exh.85) for amendment of the plaint. They asserted that in view of subsequent development, namely, that the lay out plan was 3 sanctioned after the permission for conversion of the agricultural land to non-agricultural use, plot numbers are allotted to the suit property and, therefore, in order to clarify the fact situation, they sought permission to amend the plaint. The application was opposed by the petitioners. The application came to be allowed by the learned trial Judge vide the impugned order. 5. Mr.Barde, learned advocate would point out that the issues were settled in a suit about four (4) years prior to filing of the amendment application. He would submit that at such belated stage, the amendment could not have been allowed in view of proviso appended to Rule 17 of Order VI of the C.P.C. He seeks to rely on "Vidyabai and others Vs. Padmalatha and another" 2009 (2) SRJ 454. It has been held by the Apex Court that it is the duty of the Court to decide whether the amendment is necessary so as to decide the real dispute between the parties. The Court's jurisdiction to allow amendment application is taken away after the issues are 4 framed, unless the Court comes to the conclusion that inspite of due diligence such amendment could not have been sought. The proviso of Rule 17 is attracted when ordinarily the amendment application could be preferred prior to commencement of the trial but it was not so done due to negligence of a party. In the present case the subsequent development was that the agricultural land, which was already converted for non-agricultural use was plotted under a lay out plan sanctioned after filing of the suit. The plaintiffs desire to clarify the description of the suit property by making reference to the plot numbers which are carved out at subsequent stage. In other words, the amendment is result of the subsequent development and is of formal character. No prejudice was likely to be caused to the petitioners due to such amendment. In this view of the matter, the discretion used by the trial Court can not be faulted with. The petition is, therefore, dismissed. No costs. (V.R.KINGAONKAR,J.) asp/office/wp690407 5