1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5132 OF 2008 1. Alka W/o.Manik Kore, Age-34 years, Occu-Household, R/o.Apsinga, Tq.Tuljapur, Dist : Osmanabad 2. Manik S/o. Ambadas Kore Age-42 years, Occu-Agriculturist, R/o.Apsinga, Tq.Tuljapur, Dist : Osmanabad PETITIONERS VERSUS Sambha S/o.Santram Mali Age-42 years, Occu-Agri. R/o.Apsinga, Tq.Tuljapur, Dist : Osmanabad RESPONDENT Mr.R.V.Naiknavare, advocate for petitioners. Mr.S.S.Shinde, advocate for respondent (CORAM : A.V.POTDAR, J.) DATE : 10/06/2009 ORAL JUDGMENT : 1. By the present writ petition under Article 227 of The Constitution of India, the petitioners herein who are original defendants in RCS No. 257/06, have challenged the order passed below Exh.70, by which the Civil Judge, J.D., Tuljapur have allowed the amendment application under Order-VI, Rule-17 of The CPC at very belated stage. 2 2. Considering the very short point involved in the writ petition, Rule. Rule made returnable forthwith and the writ petition is heard finally at the stage of admission itself. 3. The factual matrix which gave rise to file the present writ petition can be summarized as : The respondent herein has filed RCS No.257/2006 before The Civil Judge, J.D. Tuljapur, Dist : Osmanabad for the relief of perpetual injunction in respect of properties mentioned in plaint para no.1 on the basis of his title to the suit premises. This suit claim was resisted by the petitioner by filing their written statement on 06/01/2007. After framing necessary issues, the parties were put to the trial. During the trial, the plaintiff respondent laid the evidence and closed the evidence by filing an application dated 17/08/2007. Thereafter, the petitioners defendants also laid their evidence and closed the evidence vide evidence close pursis dated 17/12/2007. Since then, the matter was listed for final arguments and was adjourned from time to time. 4. It further appeared that after about 6 months of closure of evidence, when the matter was listed for final arguments on 11/06/2008, an application was moved for amendment under Order 6 Rule 17 of CPC to incorporate para no.6(a) by way of proposed amendment after para no.6 in the original plaint, by which the respondent plaintiff want to incorporate the entries about the revenue record in the plaint. This amendment was opposed by the present petitioners vide their say on the application itself on 3 18/06/2008. After hearing the submissions of both the sides, the learned Lower Court pleased to allow the said application vide its order dated 30/06/2008, which is under challenge by way of this writ petition. 5. Heard Adv.Mr.Naiknavare for petitioners, followed by the arguments of Adv.Shinde for the respondent. During the course of arguments, the only point raised for consideration that by virtue of amendment to the CPC in the year 2002, where the pleadings to be filed alongwith the affidavits of the facts pleaded in the pleadings to the effect at the time of filing the pleadings in the Court of Law itself. After these pleadings are filed in the Court, and after framing of the issues as stated earlier, the parties were directed to lead the evidence in respect of the facts pleaded by them. The evidence was accordingly recorded from both the sides, and matter was listed for final arguments. At this stage, amendment which is allowed by the Trial Judge have not to be allowed as it is at very belated staged and the evidence is already over. The facts which by way of amendment the petitioner plaintiff wants to incorporate in the original pleading were of the year 2003, whereas the plaint was filed in the year 2006. Means it is well within the knowledge of the petitioners and inspite of the knowledge of the facts, if that fact is not pleaded in the plaint when filed in the year 2006, now to allow to incorporate that fact in the original pleading by way of amendment and i.e. also after the evidence of both the sides was recorded then it is nothing but the abuse of process of Law. 4 6. While opposing the submissions, according to advocate for respondent the amendment is necessary for the just decision in the suit. 7. Order 6 Rule 17 of CPC is very specific that unless it is brought to the notice of the Court that the fact to be brought on record by way of an amendment must not take away the effect of the original pleading and change the nature of the suit. At the same time, when any new document to be introduced or to be put on record by way of pleading and by way of amendment also, it is to be mentioned in the cause of the application that at the time of filing of the pleadings that document was not in possession of the party, who wants to rely on that document and to assure that at the relevant time, necessary summons will be taken to call to produce that document before the Court. The relevant provisions is under Order 7 Rule 14 of CPC in respect of the documents relied upon by the plaintiff in the plaint and under Order 8 Rule 1 of CPC in respect of the documents on which the defendant is relying upon. The submissions across the bar by the learned advocate for the respondent that even though the inspection of the crop was carried out in the year 2003, till the evidence of the parties was over in the year 2008, the inspection report prepared by the Village Kamgar Talathi was not available to the plaintiff, hence not able to produce alongwith the pleading or during the trial while recording the evidence is far away from the factual truth. 5 8. In the premise, the amendment allowed by the Trial Court is without application of mind and perverse. In the premise, the order dated 30/06/2008 is required to be quashed and set aside. Accordingly the order dated 30/06/2008 passed below Exh.70 in RCS No.257/2006 on the file of Civil Judge, J.D. Tuljapur is hereby quashed and set aside. Rule made absolute as indicated above. The writ petition stands disposed of accordingly with no order as to costs. (A.V.POTDAR, J.) khs/wp5132-08