1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7520 OF 2008 Abdul Gafoor S/o Abdul Rehman } Age : 36 Years, Occ. : Business, } R/o : Bilalnagar, Nanded. } .... PETITIONER V E R S U S 1. The Deputy Executive Engineer } (M.S.E.B.), Urban Sub Division – I, } Vazirabad, Near Udipi Hotel, Nanded} 2. The Sub Engineer } (M.S.E.B.), Chaupala, Nanded. } .... RESPONDENTS Mr. J.R.Sayyed, Advocate holding for Mr. P.R. Katneshwarkar, Advocates for Petitioner. Mr. H.T.Joshi , Advocate for Resp. Nos. 1 & 2. [ CORAM : S.S.SHINDE, J. ] DATE : 24/08/2009 JUDGMENT : 1. This Writ Petition is filed challenging the Order dated 17/10/2008 passed by the 4th Civil Judge (J.D.), Nanded below Exh. 138 in R.C.S. No. 95 of 2002. 2 2. Learned counsel appearing on behalf of petitioner submitted that the application which was filed by the petitioner for amendment of the plaint has been erroneously rejected by the trial Court. According to the learned counsel, the amendment which was sought by the petitioner was only in the nature of consequential relief. According to the learned counsel, the prayer was made in the said application for amendment of plaint on the basis of facts, which are already on record. The amendment can not be said to be prejudicial to the interest of the defendant and application for amendment was filed at the stage when the statements of the plaintiff/petitioner was recorded by the trial court. The learned counsel invited my attention to the contents of the application which is at EXH. B from page no. 16 to 18 and vehemently submitted that in the interest of justice, amendment should have been allowed by the trial court. The learned counsel invited my attention to the grounds taken in the Writ Petition and submitted that the application filed by the applicant was at proper time and is perfectly maintainable under Order VI Rule 17 proviso of Code of Civil Procedure. According to the learned counsel, the amendment to the plaint can be brought at any stage of the proceedings. The learned counsel placed reliance on the reported Judgment of the Supreme Court in case of M.C. Agrawal, HUF V/s Sahara India and others reported in 2008 (6) Mh.L.J. 519 in which it is held that, “ It is always open by way of an amendment to amalgamate the two reliefs in one suit ”. 3 3. Learned counsel appearing for the petitioner further invited my attention to the Judgment in case of North Eastern Railway Administration, Gorakhpur V/s Bhagwan Das (dead) by L.Rs. Reported in (2008) 8 Supreme Court Cases 511 and submitted that to put an end to the real controversy, amendment should be allowed. Learned counsel further invited my attention to the reported Judgment of this Court in case of Twist Spin Industries V/s KMH Enterprises reported in 2009 (4) Bom. C.R. 216 and submitted that the amendment should be liberally allowed by the trial Court. Learned counsel invited my attention to paragraph 7,8 and 9 of the aforesaid Judgment and submitted that for the fault on the part of lawyer, who inadvertently not added some paragraphs in the plaint, client should not be punished. 4. Learned counsel appearing for the respondent submitted that the trial Court has rightly rejected the application for amendment which was filed at belated stage. According to learned counsel for the respondent, the trial was already commenced and the application which was filed by the petitioner herein was filed at the stage when the matter is pending for cross examination of defendant. Learned counsel further submitted that if the application for amendment is allowed, it will change the nature of Suit and also prejudice the interest of the respondent and, therefore, the trial court has taken a possible view and no interference is called for by this Court under Article 227 of the 4 Constitution of India. 5. I have heard learned counsel for the petitioner and learned counsel for the respondent. Upon hearing, I am of the considered view that the trial court has taken a possible view and after appreciating the contentions raised by the respective parties, has rightly rejected the application. 6. Learned counsel for the petitioner is not right in contending that the amendment which the petitioner wish to bring to the plaint, would not change the nature of the Suit or will not prejudice the interest of the defendant. The main Suit is filed by the petitioner, is for injunction. The prayer in an application which is at EXH. B i.e. application below Exh. 138 in R.C.S. No. 95 of 2002 reads thus : “ (i) Declaration that the provisional assessment bill dated nil in respect of consumer no. IP-20148-9 in the name of Shri. Abdul Rehman, Bilalnagar, Nanded in the sum of Rs. 2,20,259.40 Ps. Issued by Deputy Executive Engineer, USD-1 MSEB, Nanded is null and void. (ii) The demand bill dated 20/2/2002 in the sum of Rs. 1,76,259/- also issued by above authority pertaining to above consumer, deserves to 5 be declared as null and void ab-initio ”. 7. Therefore, from the perusal of the above mentioned prayers, it is crystal clear that the prayer of the petitioner is totally different and is seeking declaration that the provisional assessment bills as narrated in the prayer, should be declared as null and void. Therefore, it can not be said that the amendment which the plaintiff/petitioner wish to bring to the plaint would not change the nature of the Suit or will not prejudice the interest of the respondent. Secondly, as the trial court has rightly observed that the application is at belated stage and the same is filed at the stage when the cross examination of the defendant is due. The trial court has properly appreciated the provisions of Order VI Rule 17 proviso of the Code of Civil Procedure and rejected the application of the petitioner. 8. So far Judgment which is cited by the learned counsel for the petitioner are not applicable in the facts of this case. The relief which is claimed by the petitioner in an application for amendment of the plaint is different than the earlier relief claimed in the Suit. Apart from that, the application is filed at belated stage at the time of cross examination of the defendant. Therefore, the Judgments cited by counsel for the petitioner are not applicable in the facts of this case. 9. The Hon’ble Supreme Court had an occasion to consider 6 Order VI Rule 17 proviso of the Code of Civil Procedure in case of Vidyabai and others V/s Padmalatha and another reported in (2009) 2 Supreme Court Cases – 409 and held that, “ Proviso to Order VI Rule 17 is couched in a mandatory form. The Court’s jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied i.e. it must come to a conclusion that in spite of due diligence, the parties could not have raised the matter before the commencement of trial ”. 10. The Apex Court further held that, “ Commencing of the trial is date on which the Issues are framed, is the date of first hearing ” And, therefore, keeping in mind the interpretation given by the Hon’ble Apex Court to the Order VI Rule 17 Proviso, I am of the considered view that the application which was filed by the petitioner at belated stage, without disclosing in the application that in spite of due diligence he could not bring the said matter before the commencement 7 of trial. 11. Viewed from any angle, the Order passed by the trial Court does not call for any interference. Writ Petition is devoid of any merits and same is dismissed. [ S.S. SHINDE ] JUDGE knp/WP7520.08