1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5433 OF 2009 Waman s/o Madhav Sathe and others ...Petitioners Versus Janardhan s/o Limbaji Sathe and Ors. ...Respondents ..... Mr. M.A. Kandharkar, advocate for the petitioners ..... CORAM: S.S. SHINDE, J. DATED: 29TH JANUARY, 2010 PER COURT:- 1 This petition takes exception to the order dated 24.4.2009 passed by the learned C.J.J.D. Lohara below Exh.99 in R.C.S. No. 36 of 2008 (Old No. 454 of 2001). 2 Learned counsel appearing for the petitioners submits that the amendment to the plaint was not necessary and the court below has erroneously interpreted the provisions of Order VI Rule 17 proviso and allowed the application for amendment filed by the respondents. Learned counsel invited my attention to the grounds taken in the petition and annexures thereto and further submitted that after evidence was closed, the court should not have allowed the application for amendment. Learned 2 counsel would submit that this petition may be allowed by setting aside the impugned order. 3 I have heard learned counsel for the petitioners at great length and I find that the lower court while entertaining the application for amendment in para 9 of the impugned order has observed thus:- “9. First of all I would like to state that the present suit is filed in the year 2001 i.e. before the amendment in Code of Civil Procedure which came into force on 1.7.2002. By way of amendment in the year 2002 one proviso is added to Rule 17 of Order VI. As per the said proviso no application for amendment can be allowed after the trial has commenced unless court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. However said proviso would not be applicable to the pleadings of this suit as it is filed prior to 1.7.2002. More so, it is seen that the application at Exh.78 was decided on 23.1.2006 and thereafter the Court Commissioner was appointed and he submitted his report along with map. The Court Commissioner’s report is received on 6.10.2007. In the map it is stated that there is encroachment of 21 R only. The plaintiff has deposed at Exh.30 in the year 2003. Thus, the T.I.L.R. was appointed after the commencement of trial. This is a subsequent development. Therefore, even if it is assumed that the proviso added to Rule 17 of Order VI is applicable to the present suit, then also said proviso is not a bar. There is no question of showing any due diligence. The plaintiff has moved this application after receiving T.I.L.R.’s report. So far as the merit of the proposed amendment is concern that cannot be looked into at this stage. One has to see whether the proposed amendment is going to cause any prejudice to the other side. Initially the plaintiff has sought the possession of 30 R which was allegedly 3 encroached by the defendant. Now he wants to restrict his claim for the area of 21 R. Thus by way of amendment he has reduced 09 R area in his claim. This fact itself shows that defendant’s rights not at all going to be prejudiced. One fail to understand what right the defendant has accrued and the plaintiff is going to take such rights by way of proposed amendment.” 4 On careful perusal of the observations made by the court below, it appears that the court below has considered the effect of Order VI Rule 17 proviso and by detailed discussion has allowed the application for amendment. The court below has taken a note of the fact that the court Commissioner's report is received on 6.10.2007. In the map it is stated that there is encroachment of 21 R only. The T.I.L.R. was appointed after the commencement of trial. This is the subsequent development, therefore, even if it is assumed that the proviso added to Rule 17 of Order VI is applicable to the present suit, even the said proviso is no a bar to entertain the application filed by the original plaintiff. 5. Viewed from any angle, I do not see any reason to interfere in the impugned order. Writ petition is devoid of any merits and the same is dismissed. Ad-interim relief, if any, stands vacated. ( S. S. SHINDE. J.) rlj/