*1* 59.wp.4490.10 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4490 OF 2010 Sou.Ruksana Yunus Kurane & Ors. ..Petitioners -Versus- Smt.Irshad Chand Kurne & Ors. ..Respondents .......... Mr.Amit Sale for the Petitioners. Mr.N.Y.Chavan for Respondent Nos. 1, 2, 4 & 5. .......... CORAM : B.R. GAVAI, J. DATE : 21ST FEBRUARY, 2011. P.C. Rule. Rule made returnable forthwith. Heard by consent. 1 By the present petition, the petitioners challenges the order dated 30th March 2010 passed by the learned VIIth Joint Civil Judge, Junior Division, Sangli below Exh.42 in Regular Civil Suit No.325 of 2007 vide which the application filed by the present petitioner for amendment of the plaint came to be rejected. 2 The petitioners have filed the suit for injunction against the present respondent/original defendant Nos.1 to 5 for partition, possession and declaration that the sale deed dated 21st September 2007 executed by *2* 59.wp.4490.10 defendant no.1 in favour of defendant no.5 be declared as illegal and not binding upon the plaintiffs to the extent of their share. 3 In the said suit, an application for temporary injunction was filed by the present petitioners. The same was rejected. 4 The petitioners have thereafter field an application for amendment so as to bring on record the averments that the defendants have carried out the construction during the operation of the status-quo order and therefore, praying that the construction carried out illegally should be demolished and share of the petitioners be handed over to them. The said application was opposed by the respondents/defendants by filing their say. The learned trial Court has rejected the same. Hence the present petition. 5 Mr.Sale, learned counsel appearing on behalf of the petitioners submits that the amendment which is sought to be incorporated was only in order to bring on record the subsequent developments. He submits that as such, the learned trial Court ought to have allowed the same. Mr.Chavan, learned counsel appearing on behalf of the respondent nos.1, 2, 4 and 5 vehemently opposes the petition. It is the contention of the respondents that the construction about which an averment is now sought, to be made, exists of the period which is even prior to the filing of the suit. *3* 59.wp.4490.10 He submits that no construction was made during the period when the status-quo order was operative. He submits that if such an amendment is allowed, it would prejudice the rights of the defendants, in as much as the plaintiffs would come with another application praying for demolition of the construction already legally made by the defendants. 6 By now, it is a settled principle of law that the Courts are required to take a liberal view in the matter of grant of amendment and the only rider is in view of proviso to Order 6 Rule 17 of the CPC which prohibits the amendment, when the matter is sought to be brought on record after the commencement of the trial, which with exercise of due diligence could have been brought on record prior to commencement of trial. 7 In the present case, even the issues are not yet framed, leave apart, the trial being commenced. In that view of the matter, I find that the learned trial Court ought to have allowed the application for amendment. In so far as the contention of the defendants that the suit structure is constructed prior to the filing of the suit is concerned, the respondents/defendants can always resist the claim of the plaintiffs by amending the written statement. Merely allowing the amendment would not amount to accepting the case of the plaintiffs. The Court would be required to decide the suit on the basis of the evidence that would be lead *4* 59.wp.4490.10 by the parties. At the stage of consideration of the application for amendment, it would not be proper to go into the merits of the matter. 8 In that view of the matter, the petition deserves to be allowed. The impugned order dated 30th March 2010 is quashed and set aside. The application filed by the present petitioner below Exh.42 for amendment of the plaint is allowed. The amendment be carried out within a period of four weeks from today. Needless to state that the respondents/defendants would be at liberty to carry out the consequential amendment to the written statement. 9 Rule made absolute in the aforesaid terms with no order as to costs. [ B.R. GAVAI, J. ]