{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4175 OF 2011 Shivaji Nanarao Thorat and another Petitioners Versus Santosh Shivaji Thorat and another Respondents Mr.P.S.Agrawal, advocate for the petitioners. Mr.Sachin S. Deshmukh, advocate for respondents CORAM : S.S.SHINDE, J. DATE : 30 th November, 2011 PER COURT: 1 Heard learned Counsel for respective parties. 2 This writ petition takes exception to the order dated 24.02.2011, passed by Civil Judge, Senior Division, Hingoli, below application Exhibit-25 in Special Civil Suit No.15 of 2010, thereby rejecting application for amendment of the written statement. 3 Learned Counsel for the petitioners – defendants submits that inadvertently, the facts, which the petitioners wish to bring on record of the written statement, remained to be incorporated at the time of filing of the written statement and, therefore, the trial Court should have adopted a liberal approach. {2} It is further submitted that only issues are framed and trial is not commenced and, therefore, the application for amendment of the written statement ought to have been allowed by the trial Court. He submits that there would be no prejudice to the other side if such application is allowed. Learned Counsel for the petitioners, in support of his contention, placed reliance on the reported judgment of the Supreme Court in the case of Baldev Singh & others Vs. Manohar Singh and another, reported in AIR 2006 SC 2832 and invited my attention to paras 14 and 15 of the said judgment. According to him, liberal approach should have been adopted by the trial Court. The technical view that trial begins on the first date fixed after framing issues cannot be countenanced in the light of the observations of the Supreme Court in para 15 of Baldev’s case. The trial actually begins when there is examination of the witnesses and final hearing of the suit. Learned Counsel for the petitioner also invited my attention to the grounds taken in the writ petition. Learned Counsel for the petitioner, therefore, submits that this writ petition deserves to be allowed. 4 On the other hand, learned Counsel for the Respondents submits that at the time of filing the written statement, the fact or the matter, which the petitioners wish to bring on record by way of amendment, was within the knowledge of the petitioners and, therefore, the trial Court has taken a correct view in the light of provisions of Order VI Rule 17 proviso of the {3} Code of Civil Procedure. He further submits that in the case of Vidyabai & others Vs. Padmalatha & another, reported in AIR 2009 SC 1433, the Supreme Court, in para 14, has held that, proviso appended to Order VI, Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the application for amendment. Therefore, according to the learned Counsel for the Respondents, application for amendment of the written statement has rightly been rejected by the trial Court and, therefore, this Court may not interfere in extraordinary jurisdiction. 5 Upon hearing learned Counsel for respective parties and upon perusal of the proviso to Order VI, Rule 17 of the Code of Civil Procedure, it appears that the Court can allow the application for amendment provided that the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. In the present case, the fact/matter, which the petitioners wish to bring on record by way of amendment to the written statement, was within the knowledge of the petitioner. In the application, it is not stated that the matter was not within their knowledge. The only explanation offered in the application is that inadvertently, said matter has not {4} been incorporated in the written statement. It is not in dispute that issues are already framed and thereafter date was fixed for hearing. Therefore, the view taken by the Supreme Court in the case of Vidyabai (supra), that trial commences on the date fixed after framing of the issues becomes relevant in the present case. In the facts of this case, from perusal of the contents of the application, which was filed by the petitioners, the requirement of proviso to Order VI Rule 17 is not satisfied. Ultimately, the Court will have to reach to the conclusion on the basis of averments made in the application. In the present case, the application, which was filed by the petitioners, only offers the explanation that inadvertently the matter, which petitioners wish to bring on record by way of amendment, did not find place in the written statement filed earlier. The explanation offered cannot fulfill the mandate of proviso to Order VI Rule 17 of the Code of Civil Procedure. 6 In the case of Baldev Singh (supra), the Supreme Court was considering the case of altogether different facts. There was point of inconsistent pleas taken in the written statement. On scrutiny of the record, the Supreme Court found that, in that case, the trial is not yet commenced. However, in the present case, issues are already framed. It is not in dispute that after framing of the issues date is also fixed. That apart, the suit is filed by son and wife of petitioner no.1 herein. In such suit, the view taken by the trial Court cannot be faulted. The petitioners are given liberty {5} to lead evidence on the points which are incorporated in the written statement and also given liberty to argue the points at the time of final hearing. Therefore, in my considered opinion, no case is made out for interference. 6 Writ Petition stands rejected. S.S.SHINDE JUDGE adb/wp417511