1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4172 OF 2009 Gopaldas s/o Dwarkadas Gujrathi, Age: 70 years, Occ: Business, Prop. of Tamboli Pan Material R/o. Kharakunwa, Aurangabad. .. Petitioner Versus Shailendra Kumar s/o Laxmichand Sethi, Aged : Major, Occ: Business, R/o. Kharakunwa, Aurangabad, and another. .. Respondents ... Mr. K.M. Nagarkar, Advocate holding for Mr. H.T. Joshi, Advocate for petitioner. Mr. Anil Kasliwal, Advocate holding for Mrs. Netrali Jain, Advocate for Resp. No.1. Mrs. Manjusha Deshpande, Advocate for Resp.No.2. ... CORAM : K.K. TATED, J. DATE : 26TH AUGUST, 2009. PER COURT : 1. Rule. Rule made returnable forthwith. 2 Heard learned Counsel for the petitioner, learned Counsel for respondent No. 1 and learned Counsel for respondent No. 2. By consent, matter is taken up for final hearing at admission stage. 2. By this petition under Article 226 and 227 of the Constitution of India, the petitioner-original plaintiff is challenging the order dated 23-01-2009 passed by 5th Joint Civil Judge, Senior Division, Aurangabad on the application filed by the petitioner under Order-6 Rule-17 of the Code of Civil Procedure for amendment of plaint. 3. It is the case of the petitioner that the petitioner filed R.C.S. No. 587 of 2006 in the Court of the Civil Judge, Senior Division, Aurangabad for demolition of illegal construction carried out by respondent No.1- original defendant No.1. In the said suit, the petitioner prayed following reliefs. 3 "(A) That, the suit of the Plaintiff be decreed without cost against both the Defendants and by demolition of illegal construction of house of the Defendant No.1 and extending to the lane and making free access of the lane to the plaintiff, and (B) Directing to the defendant No.1 to remove the illegal construction of his house and extending upto the lane within a month from decree, failing which the Plaintiff be entitled to remove it and recover its cost from the Defendant No.1. (C) That, any other relief to which the Plaintiff is entitled to be granted." 4. The petitioner filed said suit on 21-06-2007. Thereafter, defendant No. 1 filed Written Statement. Issues were framed on 05-12-2007 vide Exhibit-18. The petitioner filed his oral evidence of examination in chief in the form of affidavit at Exhibit-22 on 22-09-2008. Thereafter, the petitioner filed application under Order-6 Rule- 17 of the Code of Civil 4 Procedure for amendment of plaint on 01-12-2008. The petitioner sought to add Para 4A in the plaint which reads as under. "PARA NO.4-A. The defendant had purchased the property in question by an registered sale deed bearing No.2558/13/14 dt. 8/8/1996 from Suresh Bhan and his sons, Agrawal and regarding the demolition of construction of lane which is shown in the western boundaries of their sale deed has been purchased by the defendants and on the western side there is shown by boundaries, the Cow-Shed, Lane etc. Moreover, the private land which is disputed one is also shown by said Deed and moreover, the C.T.S. Record is also shown bearing C.T.S. No. 8095 shows that there is a lane and on that lane the defendant no.1, made a construction. Therefore, same may please be demolished. That, the defendant no.1, has also silent about the permission of the said disputed construction and therefore, he be directed to file the permission and sale deed. The separate notice will be given." 5 5. The petitioner in his application for amendment stated that the sale deed was with him but it remained on his part to file the same alongwith the plaint. 6. Learned Counsel appearing on behalf of respondent No. 1 opposed to the present amendment on the ground that the petitioner already filed his affidavit of evidence and trial is started. He submitted that in view of Order 6 Rule 17 of the Code of Civil Procedure particularly as per proviso, amendment cannot be allowed once the trial is started. 7. It is admitted position that in the present case, the petitioner has filed his affidavit of evidence on 22-09-2008 and thereafter he preferred application for amendment of plaint on 01-12-2008. The Apex Court in the matter of Vidyabai and others vs. Padmalatha and another reported in 2009(1) ALL 6 MR 471 held that the Courts have no jurisdiction to allow the amendment if the trial is started. Head Note A and Para 7 of the judgment read as under. "Head Note-A Civil Procedure- C.P.C.-Order VI Rule 17, Order VIII Rule 1A, Order XVIII Rule 4(1) - Amendment of pleading after the hearing of a case begins - Filing of an affidavit in lieu of examination in chief of the witness would amount to 'commencement of proceeding' - It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. - Only if such a condition is fulfilled, the amendment is to be allowed." "7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under: "Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in 7 spite of due diligence, the party could not have raised the matter before the commencement of trial." It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial." 8. In the present case, the petitioner filed application for amendment under Order 6 Rule 7 of the Code of Civil Procedure after commencement of trial. Therefore, in view of the judgment of the Apex Court in the matter of Vidyabai (supra), I do not find any substance in the present Writ Petition and same is dismissed. Rule discharged. [ K.K. TATED, J.] sut/AUG09/wp4172.09