- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6879/2009 Ramlal s/o Babu Pahadiya, age 58 yrs., occu.agri., r/o Harsh Nagar, Aurangabad. ...Petitioner.. Versus 1] Rizwana Begum w/o Jabbar Khan, age 37 yrs., occu.household, r/o H.No.42, N-11, ‘L’ Sector, CIDCO, Aurangabad. 2] Syed Azmat Ali s/o Syed Ashraf Ali, age 37 yrs., occu.agril., and business, r/o Mogalpura, Kohinoor Colony, Aurangabad. 3] Syed Asif Ali s/o Syed Ashraf Ali, age 55 yrs., occu.business, r/o Mogalpura, Kohinoor Colony, Aurangabad. 4] Abdullah Khan s/o Mahboob Khan, age 52 yrs., occu.agril., & business, r/o Kohinoor Colony, Aurangabad. ...Respondents... ..... Shri K.G. Khader, Advocate h/f Shri Y.M. Khan, Advocate for petitioner. Respondent no.1 served. Shri A.D. Kasliwal, Advocate for respondent nos.2 to 4. ..... - 2 - CORAM: K.U. CHANDIWAL, J. DATE: 20.10.2010 ORAL JUDGMENT : 1] Heard learned counsel for the parties. 2] Rule was issued on 14.10.2009 followed by interim relief in terms of prayer clause (D) thereby staying the Special Civil Suit No.220/2007. 3] The petitioner – original plaintiff filed Special Civil Suit No.220/2009 with several prayers. One of the prominent prayers was seeking a declaration that the saledeeds executed by the plaintiff in favour of the defendants were not binding on him. They are prepared by the defendants in collusion with Bond Writer and officials of the Sub-Registrar’s office, Aurangabad, under the garb that they were executing a Power of Attorney for looking after the litigations of the plaintiff and in that context of the matter, such saledeeds are illegal, void, void ab initio, voidable, ultra vires and are not binding upon the plaintiff and consequently, all these documents be cancelled while passing decree of appropriate nature. 4] An application in terms of Exhibit 56 was moved by the plaintiff on 22.4.2009 seeking amendment to the plaint invoking Order 6 Rule 17 r/w Section 151 of the Code of Civil Procedure. The learned Judge rejected the said application. The said rejection is questioned in this petition. - 3 - 5] The nature of amendment, on perusal, seeks to implead the State of Maharashtra through the District Collector, Aurangabad; the Sub Registrar (Window No.3), Aurangabad; and one Khalil Khan s/o Mahboob Khan – Bond Writer in the array of defendant nos.5, 6 & 7 and the consequential amendment in the pleadings. The nature of above relief will not be within the bracket of Order 6 Rule 17 of the Code of Civil Procedure as for impleadment, provisions of Order 1 Rule 10 of the Code of Civil Procedure will have its implications. No such exercise legally permissible was followed. The apparent approach of the plaintiff is explicit so as not to proceed with the on-going litigation as this application is moved after plaintiff’s evidence. It is a matter of record that the defendants’ affidavit in chief is also tendered before the learned Judge. 6] Shri Khader, the learned counsel for the petitioner, submits that the fraud and illegalities, though are indicated in the cause title of the plaint, the impleadment of the above referred authorities is imperative, which could be done even under Order 6 Rule 17 or for that purpose the Court can consider moulding the prayers. 7] I have my doubts that any elbow room in such a fashion can be grooved as desired. The lasso and implacable created by the plaintiff, apparently referred in cause title, has itself created impediment for him as he was conscious at the time of presenting plaint as to what was his case. It is not that the subsequent - 4 - developments post suit are imperative to be brought on record. 8] The proviso to Order 6 Rule 17 of the CPC, after the amendment to CPC dated 1.7.2002, again creates obstacles for the plaintiff to seek amendment. In the matter of Vidyabai V/s Padmalatha ( 2009 (4) Maharashtra Law Journal, 30), the Apex Court has indicated the implications of the Proviso to Order 6 Rule 17 of the Code of Civil Procedure, which is couched in a mandatory form. The Apex Court has observed: “The Court’s jurisdiction to allow an application for amendment is taken away unless the condition 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. Only if such a condition is fulfilled, the amendment is to be allowed.” 9] Reverting back to the factual matrix, I find that there is no whisper in the application to have indulgence of this Court, in terms of giving a go-by to the Proviso to Order 6 Rule 17 of the Code of Civil Procedure. Writ petition lacks merits. The same is dismissed. No order as to costs. Ad interim relief is vacated. Rule is discharged. (K.U. Chandiwal, J.) ndk/c20101018