(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 5714 OF 2010 1. Sarubai w/o. Samba Kamble, Age : 79 years, Occupation : Household, R/o. Village : Harangul, Taluka and District : Latur. 2. Sudhakar s/o. Sambha Kamble, Age : 54 years, Occupation : Private Service, R/o. Village : Harangul, Taluka and District : Latur. 3. Madhukar s/o. Sambha Kamble, Age : 52 years, Occupation : Service, R/o. Village : Harangul, Taluka and District : Latur. 4. Bhaskar s/o. Sambha Kamble, Age : 46 years, Occupation : Agriculturist, .. Petitioners R/o. Village : Harangul, (Original defendant Taluka and District : Latur. nos.1 to 4) versus 1. Babu s/o. Sudama Kamble, Age : 74 years, Occupation : Agriculture. (2) 2. Uttam s/o. Sada Kamble, Age : 64 years, Occupation : Agriculture. 3. Ram s/o. Sada Kamble, Age : 59 years, Occupation : Agriculture. 4. Pandurang s/o. Sada Kamble, Age : 54 years, Occupation : Agriculture. Nos.1 to 4 R/o. Village : Harangul, Taluka and District : Latur. 5. Gayabai w/o. Rajaram Chakare, Age : 42 years, Occupation : Household, R/o. Village : Harangul, Taluka and District : Latur. .. Respondents (Nos.1 to 4 - Original 6. Lalita w/o. Nilkanth Kamble, plaintiffs Age : 38 years, & Occupation : Household, Nos.5 & 6 - Original R/o. Bhudada, Taluka : Ausa, defendant nos.5 & 6) District : Latur. ....................... Mr. C.R. Deshpande, Advocate, for the petitioners. Mr. Dhananjay Deshpande, Advocate, for respondent nos.1 to 4. Mr. S.I. Nandode, Advocate for respondent nos.5 and 6. ........................ (3) CORAM : B.P. DHARMADHIKARI, J. DATE : 22ND FEBRUARY 2011 ORAL JUDGMENT : 1. Heard learned Counsel for respective parties. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 3. Adv. Mr. C.R. Deshpande, for the petitioners / defendants, has pointed out that after proving in cross examination, incorrectness of the story of respondents / plaintiffs about the suit property and its devolvement, amendment has been sought on extremely vague grounds and it has been allowed without due consideration. He has invited attention to paragraph 2 of the plaint, as it stood originally, and paragraph 2, as allowed to be added by way of amendment. 4. Adv. Mr. Dhananjay Deshpande, for respondent nos.1 to 4, states that the trial court has correctly found that nature of suit does not undergo any change and there were no admission, as such, in the cross examination. He invites attention to application under Order VI Rule 17 of the Code of Civil (4) Procedure, 1908, to point out that after cross examination, some old documents were found and because of the knowledge gathered therefrom, the amendment was sought. 5. However, the impugned order does not show consideration of any old document and there is nothing on record to show that any such documents were tendered on record to substantiate the contention of discovery of new material after cross examination. Both the learned Counsel, however, expressed their inability to make a statement whether such documents were filed before the trial court along with the application for amendment, or not. 6. The knowledge gathered from these documents subsequently discovered (as alleged) is the cause for filing application under Order VI Rule 17 of the Code of Civil Procedure, belatedly. Prima facie finding about correctness of this story or its relevance in the matter, therefore, was essential. The impugned order does not show any such application of mind. 7. In the result, the petition is partly allowed. The impugned order dated 6-3-2010 passed by learned 3rd (5) Joint Civil Judge (Senior Division), Latur, below Exhibit 48 in Regular Civil Suit No. 664/2006, is quashed and set aside. Application Exhibit 48 is restored back to the file of the trial court for taking fresh decision on it in accordance with law, after giving opportunity of hearing to both sides. 8. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp5714