1 WP 6810.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6810 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. S.L.Bhapkar, Advocate for the petitioners. .......................... CORAM : S.V. GANGAPURWALA, J. DATE :14/09/2011 PER COURT : 1. The petitioners are the original defendants. The present respondent no. 1 had filed Suit initially for declaration that the mutation entries are void and for injunction. The said Suit was filed on 03/03/2010. On the very same day, the present petitioner no. 1 had sold the suit property in favour of his wife. The said fact was disclosed by the petitioners in the written statement. After lapse of four ( 4 ) months of filing the written statement, the plaintiff filed an application for amendment in the plaint, thereby seeking relief of declaration that the sale deed executed by the petitioner no. 1 in favour of his wife on 2 WP 6810.2011 03/03/2010 is illegal, not binding, so also sought addition of party of the purchaser. There was some mistake regarding paragraph numbers in the said amendment application. So, the plaintiff also filed another application for amendment in the said amendment application. Both the applications are allowed. Aggrieved thereby, the petitioners have filed the present Writ Petition. 2. Mr. Bhapkar, the learned counsel for the petitioners strenuously contends that the nature of the Suit has changed by virtue of the amendment. Initially, the Suit was only for the relief of declaration regarding the mutation entries and now the Suit is being converted for the relief of declaration regarding the sale deed. The plaintiff has not shown due diligence while filing the said amendment application, in as much as the same is filed after the issues are framed. The learned counsel further contends that in spite of the fact that the petitioners have disclosed the factum of the execution of the sale deed in the written statement for four ( 4 ) months, the plaintiff has kept quiet. This shows lack of due diligence. According to the learned counsel, there is no provision under the Code of Civil Procedure [ For short, ‘ the Code ’ ] to file an application seeking amendment in the amendment application. Without considering this aspect, the trial Court has allowed the same. Even the plaintiff has got remedy to file a separate Suit. 3 WP 6810.2011 3. A sale deed executed by the petitioner no. 1 in favour of his wife is on the same day on which the Suit is filed. It can be said that the said sale deed is during the pendency of the Suit. Be that as it may. The sale deed having been executed by petitioner no. 1 in favour of his wife so as to avoid any further multiplicity, the plaintiff has sought addition of the purchaser as a party and also sought relief as against the said sale deed. That would not mean that the nature of the Suit is totally changed. The said circumstance has arisen on the day of filing of the Suit only and not prior to that. More over, there was some mistake in submitting paragraph numbers in the amendment application. Only that was sought to be corrected by another application. It is trite law that when there is no provision under the Code, then the Court can resort to Section 151 of the Code. It can not be said that an error has been committed by the Court while allowing the said application. The petitioners will have every right to file written statement in respect of the said amendment being made. 4. In light of the above, as there is no error committed by the trial Court, the Writ Petition is dismissed. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 6810.2011 4 WP 6810.2011