wp7621.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.7621 OF 2010. Kalawati Laxman Sonwane. ... PETITIONER. VERSUS Laxman Ananda Sonwane. ... RESPONDENT. ... Shri N.N. Nerlekar, Adv. h/f Mr.Shivaji T. Shelke, Advocate for Petitioner. Respondent served - absent. ... CORAM : S.S. SHINDE, J. 15th July, 2011. PER COURT: 1. This petition is directed against the order dated 16th June, 2010 passed by the C.J.J.D., Rahata, District Ahmednagar by which the application at Exh.5 for amendment of the suit came to be allowed. 2. The learned Counsel for the petitioner invited my attention to the contents of the application which wp7621.10 2 was filed by the respondent herein before the trial Court and submitted that from the averments in the said application, it is crystal clear that no any due diligence has been shown or disclosed in the said application. He submits that suit was filed by the respondent / plaintiff on 18th June, 2006. Issues were framed on 10th October, 2007 and the application for amendment was filed on 9th March, 2009. The learned Counsel for the petitioner further submits that even if the contention of the respondent is accepted that the written statement filed by the petitioner herein on 18th July, 2006 had given cause to file application for amendment. However, the said application was filed after two and half years and there is no any explanation offered by the respondent for such belated application for amendment. Therefore, according to the learned Counsel for the petitioner, the mandate of O.6 R.17 proviso of the Code of Civil Procedure has not been adhered to and in spite of that, the learned trial Court has allowed the application for amendment. He further invited my wp7621.10 3 attention to the reported judgment of the Supreme Court in case of Vidyabai and others vs. Padmalatha and another [2009(4) Mh.L.J. 30] and submitted that the Court's jurisdiction to allow an application for amendment is taken away unless the condition precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. Therefore,the application, which was belatedly filed on 9th March, 2009 for amendment, should not have been entertained by the trial Court. He further submits that even while allowing the application, only cost of Rs. 1500/- has been imposed upon the respondent and in case, this Court is not convinced to upset the impugned order, in that case, at least, some further amount of costs may be imposed upon the respondent. 3. I have given due consideration to the submissions advanced by the learned Counsel for the wp7621.10 4 petitioner. In spite of service, none appears for the respondent. 4. From perusal of the impugned order, it is clear that though the issues were framed on 19.10.2007, no any substantial hearing or recording of the evidence was there for about one year from the date of framing of issues. The trial Court has also referred the judgment of the Supreme Court in case of Dhanpal Balu Lhawale vs Adgouda Nemagouda Patil (dead) by Prop.Lrs., reported in 2009 ALL SCR 1536 and observed that while entertaining the application for amendment, the Court should take lenient view and depending upon the facts of the case, should dispose of the application for amendment. In para 7 of the order, the learned trial Judge has also observed that to avoid multiplicity of litigation, it is just and proper to allow the application which was filed by the respondent. 5. From reading the contents of the application wp7621.10 5 filed by the respondent for amendment of the plaint, there is reference to the written statement filed by the petitioner herein. In the written statement, the petitioner who is wife of the respondent, had taken a stand that the respondent is not entitled for any share in the property and according to the respondent, that gave cause for him to file application for amendment. It is true that the application was filed by respondent on 9th March, 2009 and written statement was filed on 18th July, 2006. However, the trial Court has observed that even after framing the issues, for one and half year the matter came to be adjourned and, there was no any substantial hearing. Therefore, taking a lenient view, the trial Court has allowed the application for amendment. In case of Vidyabai (supra), the Honourable Supreme Court had occasion to consider issue as to which the date of commencement of trial. In para 8 of the said judgment, the Supreme Court held thus: wp7621.10 6 "8. ........... The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in- chief of the witness, in our opinion, would amount to 'commencement of proceeding'." 6. Admittedly, in the present case, no affidavit in lieu of examination-in-chief was filed by the witnesses. In that view of the matter, in my opinion, taking overall view of the matter, the trial Court has taken a possible view. Therefore, no interference is warranted. Hence, writ petition stands rejected. [ S.S. SHINDE, J ] PLK/*