(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 5127 OF 2009 1. Ajinath s/o. Yadavrao Misal, Aged : 35 years, Occupation : Agriculture, R/o. Jategaon, Taluka : Vaijapur, District : Aurangabad. 2. Shivaji s/o. Yadavrao Misal, Aged : 26 years, Occupation : Agriculture, R/o. Jategaon, .. Petitioners Taluka : Vaijapur, (Original District : Aurangabad. defendants) versus 1. Bhausaheb s/o. Gorakhnath Kolhe, Aged : 19 years, Occupation : Labour, R/o. Borsar, Taluka : Vaijapur, District : Aurangabad. 2. Balu s/o. Gorakhnath Kolhe, Aged : 21 years, Occupation : Labour, .. Respondents R/o. Borsar, Taluka : Vaijapur, (Original District : Aurangabad. plaintiffs) .......................... (2) Mr. R.N. Dhorde, Advocate, holding for Mr. P.S. Dighe, Advocate, for the petitioners. Mr. S.G. Thombre, Advocate, for respondent nos.1 and 2. .......................... CORAM : B.R. GAVAI, J. DATE : 19TH NOVEMBER 2009. COURT'S ORDER : 1. By way of present petition, the petitioners have challenged the order dated 24th June 2009, passed by the learned Joint Civil Judge (Junior Division), Vaijapur, below Exhibit 48 in Regular Civil Suit No. 429/2003, thereby rejecting the application filed by the present petitioner for amendment to the written statement. 2. The respondents plaintiffs have filed a suit for declaration and possession. It is the contention of the petitioners defendants, that though the suit was under valued, an erroneous admission came to be given in the written statement, that the suit was properly valued. It is the case of the petitioners defendants, that when subsequently it came to the notice of the defendants, that the suit was under valued, an application came to be filed under Order VII Rule 11 of the Code of Civil Procedure, 1908, for rejection of the plaint. The trial court observed by deciding the said application, that the perusal of the written statement would reveal (3) that no such plea was raised by the defendants. The trial court, therefore, vide order dated 24th November 2008, rejected the said application observing that the said application was nothing else but an attempt to prolong the trial. 3. Subsequently, an application came to be filed under Order VI Rule 17 of the Code of Civil Procedure. By way of amendment, a ground was sought to be raised, that the consideration shown in the sale deed was Rs. 1,50,000/- and, as such, the suit was under valued and, therefore, barred by pecuniary jurisdiction of the court. The said application is rejected by the trial court observing that the application was filed when the suit was part heard and with a view to prolong the trial. Being aggrieved thereby, the present petition. 4. Mr. R.N. Dhorde, learned Counsel appearing for the petitioners, submits that the learned Judge of the trial court has grossly erred in rejecting the application. It is submitted that by an amendment, only an error in the written statement was sought to be rectified and, therefore, the learned Judge of the trial court ought to have allowed the application. 5. Undisputedly, the suit is filed after the amendment to the Code of Civil Procedure in 2002. It would, therefore, be govered by the amended provisions of Order VI Rule 17 of the Code of Civil Procedure. The Apex Court in the case of Vidyabai and others Vs. Padmalatha and another ((2009) 2 SCC 409) has held that if the amendment is sought to be made after commencement of the trial, unless the party (4) satisfies that inspite of exercise of due diligence, the matter which is sought to be placed on record, could not have been placed, the court does not have jurisdiction to entertain an application for amendment. The Apex Court has further held that unless aforesaid jurisdictional fact is established, it is not permissible for the court to allow an amendment after commencement of the trial. 6. It is thus clear that unless a party seeking an amendment satisfies the court, that the matter which is sought to be brought on record, after commencement of trial, could not be brought on record prior to commencement of trial inspite of exercise of due diligence, the court does not have jurisdiction to entertain the application for amendment. In the present case, leave aside due diligence, if the petitioners could have shown some diligence, the matter could have been brought on record prior to commencement of trial. Admittedly, issues are framed. The affidavit, in lieu of examination in chief of the plaintiff, is already placed on record and the matter is fixed for cross examination of the plaintiff. I, therefore, do not find any error in the approach adopted by the learned Judge of the trial court, who has observed that the application is nothing else but an attempt to prolong the matter. 7. The application for amendment also deserves to be rejected on an another ground. Though on merits the amendment could be permissible for explaining or amplifying the submissions already made in the original pleadings, an amendment, which takes away an admission, would not be permissible in law. From the perusal of the application, it would be clear that the defendants petitioners are seeking (5) to withdraw an admission which is made in the written statement. 8. In that view of the matter, the petition is found to be wholly without any merit and, therefore, deserves to be dismissed with costs. 9. Hence, I pass the following order : (i) The petition is dismissed with costs, which are quantified at Rs. 10,000/- [Rupees Ten Thousand]. (ii) The costs, as aforesaid, shall be deposited by the petitioners collectively, within a period of three weeks from today, in the trial court. On failure to deposit costs within the stipulated period, defence of the petitioners shall be struck off. (iii) On deposit of costs, the respondents plaintiffs shall be at liberty to withdraw the same. ( B.R. GAVAI ) JUDGE ......................... bgp/wp5127