spb/- 1 wp2097-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 2097 OF 2010 Namdeo Chimaji Salunkhe ... Petitioner. V/s. Shri Shrirang Waman Jadhav ... Respondent. ----- Mr. M.N. Dhamal for the Petitioner. Mr. Siddharta Karpe i/by YKS Legal for the Respondent. ----- CORAM : D. G. KARNIK, J. DATE : 04th JULY, 2011. P.C. : 1 Notice was issued to the respondent by order dated March 22, 2010 mentioning that endeavour would be made to decide the petition finally at the stage of admission. 2 Rule, returnable forthwith. Mr. Karpe waives service for the respondent. Heard learned counsel for the parties. 3 The petition is directed against an order dated 19th January, 2010, rejecting the application of the petitioner (original plaintiff) for amendment of the plaint. The application has been rejected on the ground that the trial had commenced and no ground had been made out spb/- 2 wp2097-10.sxw by the plaintiff to show that despite due diligence he could not raise points sought to be raised by the amendment before commencement of the trial. The application was thus rejected on the ground mentioned under provisions of Order 6 Rule 17 of the Code of Civil Procedure. In my view, the trial court clearly erred in interpreting the meaning of the words “commencement of the trial” used in the proviso. This is clear from the following observations in paragraph 5 of the order, which reads : “5 Further, the suit is for hearing and the issues were so framed in the suit on 9.6.2009 and then the suit was fixed for recording the evidence of the parties and as such, plaintiff is expressly barred from making any such application looking to the provisions under Order 6 Rule 17 of CPC ( as amended). 4 It is clear that the learned Judge considered framing of issues as equivalent to the commencement of the trail. In the case of Baldev Singh vs. Manohar Singh, 2006(5)Mh.L.J. 634, the Supreme Court has held that for the purpose of provisions of Order 6, Rule 17, commencement of trial must be understood in the limited sense as meaning final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. A trial, therefore, commences only with the filing of the affidavit in lieu of examination-in-chief by the spb/- 3 wp2097-10.sxw plaintiff. In the present case, it is not disputed that the affidavit in lieu of examination- in-chief was not filed by the plaintiff but only issues were framed. In this view of the matter, the impugned order cannot sustain and is required to be set aside. 5 Consequently, the petition succeeds and the impugned order is set aside and the application made by the plaintiff for amendment of the plaint at Exh.26 is allowed. 6 Rule made absolute without any order as to costs. [D.G. KARNIK, J.]