1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. W.P.NO.5078 OF 2008. Sau.Kusumbai Shivaji Madekar ...vs.. Dr.Sanjay Santosh Bawane & anr. ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's directions and Registrar's order. orders. -------------------------------------------------------------------------------------------------------------------------- Coram : C. L. PANGARKAR, J. Dated : 17th JUNE, 2009. 1. Heard Shri Muley, the learned counsel for the petitioner. 2. This writ petition challenges the order passed by the learned Civil Judge on 15/10/2008 on an application for amendment of plaint. The petitioner has instituted a civil suit for ejectment of respondent/defendant. After the suit was instituted, respondent/defendant appeared in the suit and filed written statement in the matter. The suit came to be fixed for framing of issues and issues were framed on 16/9/2008 on which date 2 the plaintiff/petitioner moved an application for amendment of the plaint. The petitioner sought to amend the plaint by adding a contention that defendant will not surfer any hardship even if the decree for ejectment is passed. 3. The learned judge of the trial court heard the parties and rejected the application for amendment only on the ground that the application for amendment has been moved after the suit came to be fixed for recording of the evidence. According to him, due to the addition of proviso to Order 6 Rule 17, such an application cannot be entertained once the hearing of the suit begins. Holding so, he rejected the application. 4. Learned counsel for the petitioner submits that the observation of the learned judge of the trial court that the matter was fixed for evidence and therefore he could not entertain the application is apparently not correct. He has placed before me the order-sheet in the said suit. The order-sheet clearly shows that the suit was fixed for 3 framing of issues on 16/9/2008 on which date the application for amendment was moved by the petitioner/plaintiff. Apparently, therefore, the suit was never fixed for recording the evidence of the parties. The observation of the learned judge that the suit was fixed for evidence is therefore not correct. The learned judge ought not to have rejected the application on that count. In the circumstances the petition is allowed. The impugned order passed by the learned judge is set aside. The learned judge of the court below is, therefore, now directed to decide the application under Order 6 Rule 17 of C.P.C. afresh. JUDGE. chute