1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7336 OF 2009 Pandurang Shivappa Sontakke & another ....Petitioners. Versus Rama Bapu Lashkare & others ....Respondents. Shri. V.D. Salunke h/f. Shri. S. P. Urgunde, Advocate for the petitioners. Shri. R.B. Deshmukh, Advocate for the respondent No. 5. CORAM : R.M. BORDE, J. DATE : 24th March, 2010 ORAL ORDER : 1. Heard the respective counsel appearing for the parties. 2. An application presented to the First Appellate Court, seeking permission to amend the pleadings, tendered by the respondents/ original plaintiffs, has been turned down by the First Appellate Court in view of the order passed on 4.9.2009 in Regular Civil Appeal No. 191/2007 and the said order passed by the First Appellate Court is the subject matter of challenge in this petition. 3. The petitioners/original plaintiffs instituted Regular Civil Suit No. 2 245/2000 in the Court of Civil Judge, Junior Division, Tuljapur, claiming relief of declaration and perpetual injunction. The suit came to be dismissed of on 30.7.2007. The original plaintiffs being aggrieved by the dismissal of suit by the Trial Court presented an appeal being Regular Civil Appeal No. 191/2007 to the District Judge, Osmanabad. The appeal is stated to be pending and listed for final arguments. The plaintiffs, at the stage of hearing of the appeal, have presented an application, seeking amendment to the plaint. The plaintiffs want to plead in respect of execution of agreement of sale by defendant No. 1 with the consent of defendant Nos. 2 and 3. The plaintiffs contend by virtue of proposed amendment that the defendant Nos. 2 to 4 were having knowledge in respect of transaction of sale effected by defendant No. 1 and as such, they cannot dispute the entitlement of the plaintiffs in respect of the suit property in their capacity as the owners. The application seeking amendment to the plaint has been turned down by the First Appellate Court on the ground that the same is presented at belated stage and after the decision of the suit by the Trial Court. 4. I have perused the application as well as the order passed by the First Appellate Court. It is contended by the counsel appearing for the petitioners that merely the application is tendered late, cannot be a ground for rejecting the same. It is further contended that no prejudice would be caused to the other side as the document has been referred by the plaintiffs in evidence and the same has already been exhibited. The 3 learned counsel appearing for the respondent, per contra, has contended that objection is raised by the defendants for considering the document without there being any pleading in that behalf. Such an objection was raised before the Trial Court and the same is also raised before the First Appellate Court. The presentation of the application is attempt to fill up the lacuna occurring in the case of the plaintiffs. 5. The pleadings can be amended in view of Order 6, Rule 17 of C.P.C. It is to be noted that the plaintiffs proceeded with the trial and did not find it necessary to request the Court for permitting him to amend the pleadings at the stage when the trial was proceeded before the Court of first instance. There is also no reason exhibited as to why such an attempt was not made when the trial was proceeded. It also cannot be said that the plaintiffs were not posted with the knowledge of existence of the document. They were aware in respect of the document and therefore, it cannot be inferred that the plaintiffs have acted with due diligence in tendering the application for amendment. The application came to be tendered only at an appellate stage and that too when the appeal is posted for final hearing. There are no circumstances placed on record in respect of exercise of due diligence by the plaintiffs in approaching the Court. In absence of the valid reasons bringing to the notice of this Court, as to what were the compelling circumstances which rendered it difficult for the plaintiffs to make such a request at the earlier point of time, the application tendered at the late stage, has 4 rightly been dealt with by the First Appellate Court. The question of prejudice need not be analysed at this stage and it shall have tobe dealt with by the First Appellate Court. In exercise of extraordinary jurisdiction of this Court under Article 227 of the Constitution of India, no interference is called for. Petition stands rejected. [ R.M. BORDE, J. ] ssc/wp7336.09