1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 4661/2011 (ASHFAQ ALI RAMZAN ALI VERSUS MANOJ R. DOMKUNDWAR & OTHERS) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri M.S. Abbasi, counsel for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : SEPTEMBER 20 , 2011 . Heard. By this petition, the petitioner impugns the order passed by the first appellate Court on 28.07.2011 rejecting an amendment application filed by the petitioner. The petitioner is the original plaintiff. He had filed a suit for permanent injunction restraining the respondents from disturbing his possession except by following the due process of law. The petitioner claimed to be the tenant in the suit premises. An objection was raised to the tenability of the suit in the Court of Small Causes as according to the respondents, the Maharashtra Rent Control Act was not applicable as the suit premises was an open plot. Since the trial Court dismissed the suit of the plaintiff-petitioner on the ground of tenability, the petitioner preferred an appeal against the judgment passed by the trial Court. In the first appeal, the petitioner filed an amendment application seeking the amendment of the plaint. By the proposed amendment, the petitioner wanted 2 to incorporate a pleading that there was a structure consisting of two rooms standing on the plot in question. The first appellate Court, however, rejected the amendment application. It appears that the first appellate Court was justified in rejecting the amendment application as the petitioner had not established that in spite of due diligence, the petitioner could not have pleaded the facts stated in the proposed amendment, in the trial Court before the commencement of the trial. The first appellate Court, in the facts and circumstances, held that the petitioner filed the amendment application with a view to fill in the gap and lacuna and, therefore, the amendment application was liable to be dismissed. The first appellate Court rightly held that the reliance placed by the petitioner on the judgment reported in 2008(1) Bombay C R 836 (Andhra Bank Versus ABN Amro Bank N.V. & others) was misplaced. In view of the proviso of Order 6 Rule 17 of the Code of Civil Procedure, the petitioner was surely prevented from filing the amendment application at the appellate stage, specially when the petitioner had not established that he could not amend his pleadings in the trial Court in spite of due diligence. Since the petitioner wanted to plead about the two rooms on the suit plot, which was allegedly in occupation of the petitioner, the petitioner was bound to have had knowledge on this fact even before the commencement of the trial. In the result, the writ petition fails and is dismissed with no order as to costs. However, the observations made by the first appellate Court while 3 deciding the amendment application would not prejudice the case of the petitioner in the appeal filed before the first appellate Court. JUDGE APTE