1 wp7207.10.sxw ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7207 OF 2010 Narayan Rajaram Kulkarni. ..Petitioner. Vs. Prabhakar Manohar Kulkarni & ors. ..Respondents. Mr. Nitin Mulye, advocate for petitioner. Mr. V.A.Shastry, advocate for Respondent Nos. 1-A to 1-D, 2 to 4, 7 & 8. CORAM : B.R.GAVAI, J. DATE : MARCH 10, 2011. P.C. 1. Heard. The Petitioner challenges the order dated 5 th February, 2010, vide which the application filed by the present Petitioner for amendment of the plaint came to be rejected. 2 The Plaintiff has filed suit praying for specific performance. In the said suit, an application came to be filed below Exh. 174 seeking to implead an averment to the effect that the noting in writing insofar as the 2 wp7207.10.sxw agreement between the Plaintiff and the Defendants regarding preemption in favour of the present plaintiff was recorded and defence was taken by the defendants. The said application was rejected. Hence, the present Petition. 3 Mr.Mulye, advocate appearing on behalf of the Petitioner submits that in the pleadings the Petitioner has already made an averment regarding right of preemption is in favour of the Plaintiff. However, it subsequently, came to his notice that there was a noting in writing with reference to that and therefore, in order to bring that averment on record, the application for amendment was made. He submits that it was in the interest of justice that such an amendment ought to have been allowed. 4 Mr. Shastry, learned Counsel appearing on behalf of the Respondents vehemently opposed this Petition. 5 Admittedly, the amendment is sought to be incorporated after the evidence has commenced and the matter is at the cross-examination of 3 wp7207.10.sxw the defendants’ witness as such. Unless the petitioner satisfies the condition as provided in proviso to Order 6 Rule 17 of the C.P.Code, an application for amendment of the plaint would not be tenable. Only explanation given in the application is of inadvertence. There is no whisper about as to how, inspite of due diligence such an amendment could not be brought on record prior to commencement of trial. In that view of the matter, no interference is warranted in exercise of writ jurisdiction. Hence, Petition is rejected. [ B.R.GAVAI, J ]