wp2507.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 2507 OF 2011 GAJANAN @ RAHUL DNYANESHWAR NAGARE U/g mother Sow. Indubai Nagare and anr. ... PETITIONERS. VERSUS SUBHASH PANDURANG NAGARE AND ORS. ... RESPONDENTS. ... Advocate for Petitioner(s) : Mr. Ghatge Mahesh V. Advocate for R.Nos.1 to 5 :Mr. A.S. Bajaj. ... CORAM : S.S. SHINDE,J. 18th August, 2011. PER COURT: This petition has been filed challenging the order dated 19.8.2010 passed by the District Judge-1, Hingoli on Exh.13 in R.C.A. NO.83/2008. 2 The learned Counsel appearing for the petitioners submits that the respondents herein filed wp2507.11 2 written statement in R.C.S. NO.209/2005 on 12.12.2005. In para 12 of the said written statement, there was mention about the compromise decree and thereafter, only the petitioners came to know about the said decree. However, no details or particulars about the said decree were mentioned in the written statement. Therefore, there was no reason for the petitioners to challenge the said decree. According to the learned Counsel for the petitioner when such compromise decree was produced in evidence on 20th January, 2007, the petitioners came to know about the same. However, as the suit was decided in the month of February, 2007, the petitioners could not challenge the said decree. According to the learned Counsel for the petitioners, appeal is continuation of the suit and in appeal, application was filed for amendment under O. 6 R. 17 of the Code of Civil Procedure. The petitioners wanted to amend the plaint thereby making averments / pleadings about the said compromise decree and they also wanted to insert prayers in the plaint for cancellation of the said wp2507.11 3 compromise decree. 3 The learned Counsel appearing for the petitioners invited my attention to paragraphs 11 and 12(3) of the impugned judgment and submitted that perverse findings are recorded by the appellate Court. Therefore, according tot he learned Counsel for the petitioners, in the interest of justice and to put an end to the controversy which was raised in the said suit and further in the appeal, the Court should have allowed the application for amendment. He also invited my attention to the grounds taken in the writ petition, annexures thereto and submitted that this writ petition may be allowed. 4 On the other hand, the learned Counsel for the respondents submitted that the application for amendment was filed at the stage of final arguments in the appeal i.e. on 24.11.2009. Therefore, by any stretch of imagination, no such application for amendment of the plaint can be allowed and more so, wp2507.11 4 when it was possible for the petitioners to file such application when there was mention in the written statement about the compromise deed and also copy of the said compromise decree was produced in the evidence on 20th January, 2007. Therefore, the learned Counsel for the respondents, relying on the reasons recorded in the impugned judgment, contended that this petition may be dismissed. 5 I have given due consideration to the rival submissions of the parties. Upon careful perusal of the provisions of Order VI, Rule 17 proviso of CPC, it is crystal clear that unless due diligence is shown by the parties, no discretion is left with the Court to allow the application for amendment. In the instant case, it is an admitted position that the suit was decided in the month of February, 2007. Even if, the contention of the petitioners is accepted that copy of the compromise decree was produced in the evidence before the trial Court on 20th January, 2007, there was a month's time for the petitioner to file wp2507.11 5 application for amendment. The learned Counsel for the petitioner has not brought to the notice of this Court any efforts of the petitioners to file such application from 20th January, 2007 till the suit was decided. That apart, the appeal was filed on 6th July, 2007 and the application for amendment was filed on 20.11.2007. Therefore, by any stretch of imagination, it cannot be said that due diligence has been shown by the petitioners. 6 The Supreme Court had occasion to interpret the provisions of Order VI, Rule 17 proviso of CPC in case of Vidyabai & Ors. vs. Padmalatha & Anr. reported in 2009(2) SCC 409, in which, the Supreme Court held in para 14 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 wp2507.11 6 amendment of the plaint. 7 Therefore, taking overall view of the matter, in my opinion, no case is made out for interference. Hence, writ petition being devoid of merits, stands dismissed. [ S.S. SHINDE ] JUDGE. ... PLK/*