1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 40. WP/5467/2010 ( BHAGWAN SITARAM WADE AND ANR V/S RAMBHAU PIRAJI WADE AND OTHERS) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr.Milind Patil, Adv., for the petitioner. Mr.N.R.Jadhav, Adv., for respondent nos. 1 to 3. Respondent nos.4, 5 & 7 served. ... CORAM: K.U.CHANDIWAL, J. DATE:12/10/2010 1. In RCS No.72/1994, Exh.128, moved by the plaintiff, was allowed by learned Civil Judge, Junior Division, Georai, permitting plaintiff to carry out amendment as sought on cost of Rs. 1,000/- by order dt.10th March, 2010. Same is impugned by the defendant in the writ. 2. A long drawn list of events is projected by the learned Counsel representing writ petitioner. The fact remains, RCS No.72/1994, basically, was for grant of relief 2 of perpetual injunction which, on analysis of evidence, the plaintiff lost. Challenge to the same before the learned District Judge, resulted in remand at the instance of the parties litigating and, particularly, the plaintiff in RCA No.177/1995 as is referred in paragraph no.22 by the learned Ad hoc Additional District Judge, Beed, in his order dt.25th Nov., 2004. 3. The appointment of Taluka Inspector of Land Records (for short, T.I.L.R.) in the matter, at the instance of learned Ad hoc Additional District Judge, Beed, having been implemented, no comments as to its legality are warranted though I find it was not testing good feature of the events as below Exh.81 the measurement was already caused at the instance of plaintiff which the defendant has accepted in the cross examination. 4. Leaving the above controversy as it is, the fact remains that 3 after the T.I.L.R. being appointed as directed by the learned Ad hoc Additional District Judge, the plaintiff moved application seeking amendment and getting entire nature of the suit changed. The events narrated are changing the basic structure of the suit which is a rebelling to Order 6 Rule 17 and in particular proviso thereof. The law is well demonstrated by the Apex Court as could be seen in the matter of Rajkumar Gurawara (Dead) Thr.L.Rs. Vs. S.K.Sarwagi & Co.Pvt.Ltd. and Anr ( 2008(4) Supreme 435: 2008 AIR (SC) 2303. The Apex Court has hinted that amendments would not be entertained in following cases: "It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation." 4 5. The Apex Court, in the matter of Revajeetu Builders & Developers V.Narayanaswamy & Sons & others ( 2009(10 SCC 84) : 2009 DGLS(Soft.) 1184 again highlighted the procedural aspects in terms of Order 6 Rule 17 of Code of Civil Procedure and also scope of Article 227 under Constitution of India to be exercised by this Court. 6. The earlier prayers in the form of suit being for perpetual injunction and by subsequent prayers the entire context and text of the suit is sought to be changed, involving even question of limitation, plaintiff seeks to restore possession from the defendant. 7. In the earlier proceedings in evidence the plaintiff has accepted that the field of the defendant is after the fields of other two persons. In the application, plaintiff has alleged that the defendant has sold some 5 part of his land, however, did not bother to carry necessary amendment to this effect. 8. Learned Judge was certainly wrong in allowing the application which, indeed, was beyond the scope of mandate in Order 6 Rule 17 C.P.C. It is not a genuine mistake that has creeped in. It is highlighting subsequent events which the plaintiff faced due to his own misdeeds. Consequently, the order granting amendment is set aside. The position is restored to the original stage of the RCS No.72/1994. Writ Petition allowed in above terms with costs. (K.U.CHANDIWAL) JUDGE ... AGP/5467-10wp