1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 4507 of 2011 Shrivillabh Dongardasji Sikchi Vs. Ibrahimkhan Ahmadkhan and another. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. R.P. Joshi, Adv. for the petitioner. CORAM : SMT. VASANTI A. NAIK J. DATE : 22 nd September, 2011. Heard Shri Joshi, the learned counsel for the petitioner. By this petition, the petitioner impugns the order passed by the trial court on 29.6.2011 rejecting an amendment application filed by the petitioner. The petitioner is the original plaintiff. A suit was filed by the plaintiff for a declaration that the defendant/respondent no.1 had obtained the judgment and decree dated 5.11.2003 in Special Civil Suit no. 325/1994 by practicing fraud on court and the same be declared as null and void. It appears that during the pendency of the suit the suit property was sold to one Ibrahim Khan through the Nazir of the court. Thereafter, the property was sold by Ibrahim Khan to Dr. Patel and these facts were sought to be brought on record by an amendment application filed by the petitioner at Exh.28. The application was rejected by the trial court. The petitioner filed Writ Petition no. 4987/2009 and this court, by an order dated 7.1.2010 partly allowed the writ petition and modified the order passed by the trial court, thereby partly allowing the amendment application. After 2 this was done, the petitioner again filed yet another application for amendment, at Exh.50 for challenging the sale deed executed through the court in favour of Ibrahim Khan on 28.4.2006. The trial court, however, by the impugned order dated 29.6.2011 rejected the amendment application. There is nothing wrong with the order passed by the trial court on 29.6.2011 rejecting the amendment application filed by the petitioner. The petitioner was not in a position to establish that in spite of due diligence he could not apply for the amendment before the commencement of the trial. The trial court observed that though the matter was fixed for recording of evidence since January, 2008, the petitioner was prolonging the matter and was avoiding to tender evidence by filing various applications. Though a reference was made by the petitioner to the sale of the property in favour of Ibrahim Khan through the Nazir on 28.4.2006 in Exh. 28, the previous amendment application, the petitioner had not made the prayer for setting aside the said sale in the application Exh. 28. The court found that in the facts and circumstances of the case, the petitioner could not have moved the amendment application at Exh. 50 seeking setting aside of the sale in favour of Ibrahim Khan. The court found, and rightly so, that the petitioner was fully aware that a sale deed was executed through the court in favour of Ibrahim Khan on 28.4.2006 and therefore the petitioner could have sought an appropriate amendment to the plaint in this regard, in the application at Exh. 28 itself. The court found that the petitioner could have raised the plea with due diligence before the commencement of the trial. Hence, by relying on the amended provision of Order 6 Rule 17 of the Code of Civil Procedure, the trial court rightly rejected the amendment application filed by the petitioner. This is a case where the petitioner did not show due diligence and in fact was negligent in prosecuting 3 the matter though the fact of sale of the property by Ibrahim Khan was mentioned in the previous application at Exh. 28. The judgment reported in (2010) 4 Supreme Court Cases 518 (State of Maharashtra Vs. Hindustan Construction Company Limited) and relied on by the learned counsel for the petitioner is distinguishable on facts and cannot be made applicable to the facts of this case. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE Hirekhan