MP -1- WP8189-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8189 OF 2010 Mr. Dilip D. Purav .. Petitioner Versus Smt. Neha M. Purav and others .. Respondents Mr. G. S. Godbole i/b. Smt. Smita Mhatre for the Petitioner. Mr. H. E. Palwe for Respondent Nos. 4 to 7. CORAM : B.R. GAVAI, J. THURSDAY, JANUARY 27, 2011 P. C. : By way of present petition, the petitioner challenges the order dated 7th July 2010 vide which the application filed by the present petitioner - plaintiff for amendment of the suit came to be rejected. 2. The petitioner-plaintiff has filed the suit for specific performance. The suit is admittedly filed on 22nd July 2002. In the said suit, an application for amendment came to be filed. The same is rejected. Hence the present petition. 3. Mr. Godbole, the learned Counsel appearing on behalf of the petitioner submits that the learned Trial Court has grossly erred in rejecting the application. He submits that the amendment in question became necessary in view of the recasting of the issues, wherein an issue regarding the readiness and willingness of the plaintiff came to be framed. He further submits that since the evidence was required to be MP -2- WP8189-10 recorded afresh, after recasting the issues, the proviso to Order VI, Rule 17 would not be applicable in the facts of the present case. The learned Counsel relies on the judgments of the Apex Court in the case of Surender Kumar Sharma Vs. Makhan Singh reported in (2009) 10 SCC 626 and Usha Devi Vs. Rijwan Ahmad and others reported in AIR 2008 SC 1147. 4. Mr. Palwe, learned Counsel appearing on behalf of respondent Nos. 4 to 7, on the contrary, submits that the learned Trial Court has correctly exercised the jurisdiction, and therefore, no interference is warranted. 5. No doubt that the Courts are required to take liberal view in grant of amendment. However, in view of the amendment to the Code of Civil Procedure in 2002 and particularly by insertion of proviso to Order VI, Rule 17, if matter is sought to be placed on record after commencement of trial, the court would not permit the same, if with exercise of due diligence, the same could have been brought on record prior to the commencement of trial. The reference in this respect could be made to the Judgment of the Apex Court in the case of Vidyabai and others vs Padmalata and another reported in 2009 (2) SCC 409. There was some controversy as to what would amount to commencement of trial. Now, the Apex Court has taken a view that settling of issues and filing of affidavit in lieu of examination in chief would amount to commencement of trial. 6. In the present case, the suit is for specific performance. The averment which is sought to be placed on record is that he was always ready and willing to perform his part of contract. By no stretch of MP -3- WP8189-10 imagination, it can be said that even if the petitioner had been diligent enough, he could not have carried out such amendment before the commencement of trial. 7. In so far as judgment of the apex court in the case of Surender Kumar Sharma (supra) is concerned, it is not clear from the said judgment as to whether the suit in question was filed prior to the amendment to the Code of Civil Procedure being brought into effect or not. Insofar as judgment in the case of Usha Devi (supra) is concerned, in the said case, the matter was at the stage of framing of issues and as such, the trial was yet to commence. 8. In any case, the petition challenges the discretionary order under Order VI of the Code of Civil Procedure. Unless it is found that the discretion exercised by the Trial Court has been exercised in perverse manner, it will not be permissible for this court to interfere with the same under extra-ordinary jurisdiction under Article 227 of the Constitution of India. No case is made out for interference. Writ Petition rejected. 9. At this stage, Shri Godbole, learned Counsel for the petitioner states that since the petitioner desires to challenge the order passed by this court by way of SLP, the suit of the petitioner be stayed for further period of six weeks. 10. On being inquired, the learned Counsel for the respondent conceded that there is no order of temporary injunction operating against the respondents. MP -4- WP8189-10 11. In that view of the matter, I am inclined to grant prayer prayed for by the petitioner and stay the proceedings of the suit before the learned Trial Court for the period of six weeks from today. (B.R. GAVAI, J)