1 WP 10954.2010 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 10954 OF 2010 Abdul Rauf S/o Shaikh Mehboob Age : 75 Yrs., Occ. Agril., R/o : Sir Sayad Chowk, Main Road, Sillod, Tq Sillod, Dist . : Aurangabad. .... PETITIONER V E R S U S Shaikh Rashid S/o Shaikh Mannu Age : 66 Yrs., Occ. Agril. & Business, R/o : Wadod Bazar, Tq. Sillod, Dist . : Aurangabad. .... RESPONDENT Mr. M.P.Kale,Advocate for the Petitioner. Mr.Mujtaba, Advocate for the Respondent. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 22/06/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The present petitioner is the original plaintiff, who had filed Suit 2 WP 10954.2010 - ( J ) for specific performance of contract and injunction. During the pendency of the Suit, the petitioner moved an application for amendment, thereby seeking the relief of possession contending that pursuant to a decree in another Suit, the defendant dispossessed the plaintiff on 31/12/2007. The trial Court rejected the said application. Aggrieved thereby, the present Writ Petition has been filed. 3. Mr. Kale, the learned counsel for the petitioner submits that the amendment is necessitated because of the subsequent events, which had taken place after filing of the Suit. According to the learned counsel, the petitioner was dispossessed on 31/12/2007 by taking aid of the order of police aid in Darkhast proceedings which was initiated by the defendant pursuant to the decree passed in his favour. The said amendment is necessary for the proper adjudication of the matter. 4. Per contra, Mr. Mujtaba, the learned counsel for the respondent vehemently opposed the petition contending that in fact now the Suit itself is not maintainable. The amendment application was not maintainable. The decree of injunction in favour of the defendant/present respondent has been confirmed up to the Apex Court. In the wake of that, neither the present suit is maintainable nor any application in that Suit can be 3 WP 10954.2010 - ( J ) entertained. The learned counsel contends that the trial has begun and in view of the proviso to Order VI Rule 17 of the Code of Civil Procedure [ For short, ‘ the Code ’ ], the amendment can not be allowed. The learned counsel further contends that the plaintiff has filed the said application belatedly even as per the contention of the plaintiff himself. He claims to have been dispossessed on 31/12/2007 and the amendment application has been filed in the year 2010. No explanation is given for not filing the amendment application earlier. 5. With the assistance of the learned counsel for the respective parties, I have gone through the pleadings and the application for amendment. 6. It is a trite law that while dealing with an application for amendment, the merits of the amendment are not to be considered. The plaintiff has come with a theory that during the pendency of the Suit, he has been dispossessed and the said fact was sought to be incorporated by way of amendment. Whether the plaintiff proves the said factum of possession/dispossession or whether Suit itself is maintainable is a different matter altogether which the lower Court would consider at the time of deciding the matter. As the said event which is sought to be brought on 4 WP 10954.2010 - ( J ) record according to the petitioner is subsequent to the filing of the Suit, I do not see any impediment in allowing the same. The proviso to Order VI Rule 17 of the Code would not be applicable as the pleadings are filed prior to 1/7/2002. For the delay in filing the amendment application, the defendant can be compensated with costs. 7. In the result, the application for amendment ( Exh. 35 ) in R.C.S. No. 173 of 2000 is allowed on condition that the petitioner pays cost of Rs. 3,000/- ( Rupees Three Thousand only ) to the respondent within the period of four ( 4 ) weeks from today. The cost may be either directly paid or deposited in the trial Court. 8. Rule is accordingly made absolute in the above terms with above cost. [ S.V. GANGAPURWALA,J. ] KNP/WP 10954.2010 - ( J )