wp7399.10 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7399 OF 2010 1 Ganpati s/o Dnyanoba Somwanshi, age 73 years, Occ. Agriculture, R/o. Wanwada, Tq. Ausa, District Latur 2 Prayagbai w/o Namdeo Somwanshi, Age 76 years, Occ. Agri & Household R/o. As above 3 Manohar s/o namdeo Somwanshi, Age 62 years, Occ. Agri & Retired R/o. As above 4 Indrajit s/o Namdeo Somwanshi, Age 56 years, Occ. Agri & Service, R/o. As above 5 Keshav s/o Namdeo Somwanshi, Age 52 years, occ. Agri R/o. As above 6 Sagarbai w/o Shahajirao Yadav, Age 55 years, Occ. Household, R/o. Borphal, Tq. Ausa, District Latur ...Petitioners Versus Sarswatibai Mahalingappa Murumkar, Age 79 years, Occ. Household, R/o. Murum, Tq. Omerga District Osmanabad ...Respondent ..... Mr. B.N. Patil, advocate for the petitioners Mr. R.P. Adgaonkar, advocate for the respondent ..... wp7399.10 -2- CORAM: S.V. GANGAPURWALA, J. DATED: 16TH AUGUST, 2011 JUDGMENT:- 1 Rule. Rule returnable forthwith. With consent of the parties, heard finally. 2 The petitioners are original plaintiffs, who have filed a suit for injunction. During pendency of the suit, the petitioners filed an application for amendment. The said application came to be rejected. Aggrieved thereby, the present writ petition is filed. 3 Shri Patil, learned counsel for the petitioners submits that the court has rejected the application on the ground that the petitioners have not shown due diligence. According to the learned counsel, the proviso to Order VI Rule 17 of C.P.C. would not apply, as the suit is filed in the year 1999. According to the learned counsel, the amendment sought does not change the nature of the suit and by way of amendment the dates are changed and also instead of name of Dhullappa the name of Sharanappa, who is son of Dhullapa, is to be mentioned. According to learned counsel, the court has taken hyper technical approach in rejecting the said application. 4 Shri Adgaokar, learned counsel for the respondent vehemently wp7399.10 -3- opposed the application and submits that the trial court has rightly considered all aspects and rejected the amendment application. All these facts which are sought to be amended were within the knowledge of the petitioners at the time of fling of suit and they are raised subsequently and no due diligence is shown in not filing the application earlier. According to the learned counsel for the respondent, even the trial has commenced and the issues are already framed. The proposed amendment will change the nature of pleading and the suit. Learned counsel further submits that earlier application for amendment was given, no reasons are stated for not incorporating the facts in the earlier amendment application also. 5 The pleadings are of the year 1999, as such amended proviso to Order VI Rule 17 would not be applicable. The amendment is in respect of change of names. The nature of the suit would remain intact. The parties have not yet led their evidence. The petitioners have now filed examination in chief. Shri Patil, learned counsel states that even if the amendment is allowed, no new examination in chief would be filed by the petitioners of the said person. 6 As the amendment would not change the nature of the suit, the proviso to Order VI Rule 17 is not applicable and the amendment application was made prior to leading of evidence, I am inclined to wp7399.10 -4- allow the said application for amendment. Needless to state that the present respondent shall have right to file additional written statement in respect of the amendment which would be made by the petitioners. 7 In the result, the writ petition is allowed. The application Exh.156 in R.C.S. No. 188 of 1999 is allowed subject to payment of costs of ` 2000/- by the present petitioners to the respondent, within a period of four weeks from today. The costs may be paid to the respondent directly or deposited in the trial court. Rule is accordingly made absolute in the above terms. *****