1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1594 OF 2009 1) Smt. Ashalata w/o Babasaheb Jadhav, R/o-Behind Parijit Mangal Karyalaya, Ausa Road, Latur and others. ...PETITIONERS. VERSUS 1) Sau. Vijaya w/o Ramakantrao Phulari, R/o-Latur, now at present Nanded and others. ...RESPONDENTS. ... Shri.S.B. Bhapkar Advocate for Petitioners. Shri.S.S. Halkude Advocate for Respondent Nos. 1 and 2. ... CORAM: NARESH H. PATIL, J. DATE : 2ND JULY, 2010. PER COURT : 1. Heard learned counsel for the parties. 2. The Petitioner/defendant challenges the 2 order passed on application filed by original plaintiff for amendment of plaint under Order 6 Rule 17 of the Code of Civil Procedure. 3. Briefly, the facts are that present Respondent Nos. 1 and 2 filed Special Civil Suit No.209 of 1997 for partition, separate possession and for injunction restraining defendant No.2 to withdraw the amount under compensation in respect of 11 R of acquired land. The plaintiff filed affidavit in evidence on 18th November, 2008. Application for amendment was filed on 4th December, 2008. The original defendant resisted the application for amendment. By an order dated 8th January, 2009 the trial Court allowed the application for amendment. 4. Learned counsel Shri. Bhapkar appearing for the Petitioners, by placing reliance on the Reported Judgment in the case of Vidyabai and others vs. Padmalatha and another, 2009(4) Mh.L.J. Page 30, submits that in view of the provisions of 3 Order 6 Rule 17 of the Code of Civil Procedure, the powers of the Court are restricted. It puts an embargo on exercise of Court's jurisdiction. The Court's jurisdiction in such a case is limited and unless the jurisdictional fact is found to be existing, the Court will have no jurisdiction at all to allow the amendment. The counsel submits that there has been inordinate delay in seeking amendment. Even if a decree for partition is passed there is no certainty that the acquired portion will fall to the share of plaintiff. In acquisition proceedings out of 2 Acre 35 Gunthas of suit land only 11 R land was acquired. It is submitted that the suit proceedings are already commenced. 5. Learned counsel for the Respondents submitted, that in the facts of the case, as per prayer clause (D) the plaintiff had already prayed for grant of injunction praying that the defendant No.2 be kindly be restrained from withdrawing the compensation amount under Special Darkhast No.227 4 of 1996 pending in the Court of 1st Joint Civil Judge (Senior Division) at Latur in respect of acquisition of 11 R land. As the compensation amount was already received by the original defendant, prayer clause (D) is sought to be substituted by praying for recovery of 5/9th share in the compensation amount. 6. Learned counsel for the Respondents submits that though there was certain delay in making such application, but the amendment was consequent to the subsequent development as the defendant withdrew the amount of compensation. The counsel submits that in case the suit is allowed and the plaintiff gets right to receive some amount of compensation of the acquired land, then in absence of any decree to that effect, the plaintiff may not get the fruits of decree and would have to file second suit for recovery of such amount. 7. I have perused the Judgment cited supra. 5 Each case has to be considered in peculiar facts and circumstances of its own. The provision under Order 6 Rule 17 of the Code of Civil Procedure has put certain restrictions on the Court to allow the amendment application. The party has to show due diligence and considering the facts of the case, jurisdictional facts will have to be considered by the Court in dealing with the amendment application. Interest of justice and fairness to the parties would also be considered. Keeping in view the principles laid down by the Apex Court in the Judgment cited supra and in the facts of the case, it is noticed that the plaintiff had already prayed in respect of compensation amount and sought for injunction which the plaintiff could not get. Subsequently in the year 1997 the amount of compensation was withdrawn. The matter was contested on that ground up-to the High Court, according to the counsel, but the plaintiff failed. It is true that the plaintiff could have approached the Court earlier with an application for amendment of plaint in respect of Clause (D). 6 The trial Court had considered this fact and had allowed the application for amendment subject to the payment of cost of Rs.500/- (Rs. Five Hundred only). 8. Considering the reasons adopted by the trial Court and in the facts of the case, I am of the opinion that in exercise of extra ordinary writ jurisdiction under Article 227 of the Constitution of India, interference is not warranted. The Writ Petition is dismissed. [NARESH H. PATIL, J.] asb/JULY10/wp1594.09