1 W.P.No.9907/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.9907 OF 2010. Sushilabai W/o Vinayakrao Male, Age 57 years,Occ.Household, R/o Bharat Housing Society, Nanded Road, Latur, Taluka and District Latur, through her Power of Attorney Holder - Vinayakrao S/o Dhondiba Male, Age 64 years, Occ.Retired Government Servant (Pensioner), R/o Bharat Housing Society, Nanded Road, Latur, Taluka and District Latur. ... Petitioner. Versus 1. Limbaji S/o Namdeo Dhaygude, Age 62 years, Occ.Agriculture, R/o Plot No.18, In front of Hotel Aditya, New Renapur Naka, Ambejogai Road, Latur, Taluka and District Latur. 2. Chandrakant S/o Limbaji Dhaygude, (General Power of Attorney Holder of Limbaji Namdeo Dhaygude), Age 37 years, Occ.Agriculture, R/o Bhakti Nagar, Near Hanuman Temple, Towards West of Sai Road, Latur, Taluka and District Latur. 3. Sidram S/o Ramkant Dhaygude, Age 37 years, Occ.Agriculture, R/o Plot No.18, In front of 2 W.P.No.9907/10 Hotel Aditya, New Renapur Naka, Ambejogai Road, Latur, Taluka and District Latur. 4. Sharad S/o Suresh Lahane, Age 18 years, Occ.Student, R/o New Renapur Naka, Laltur, Taluka and District Latur. ... Respondents. ... Mr.R.S.Deshmukh, advocate for the petitioner. Mr.S.S.Ambore, advocate holding for Mr.V.D.Salunke, advocate for Respondent Nos.1 to 3. Mr.N.D.Kendre, advocate for Respondent No.4. ... CORAM : S.V.GANGAPURWALA,J. Date : 08.06.2011. ORAL JUDGMENT : 1. Heard. 2. The petitioner is the original plaintiff who had filed a suit for injunction. During pendency of the suit, the defendant No.4 came to be added as a party. Thereafter various proceedings took place such as appointment of Commissioner and application U/o 39 Rule 2-A of the C.P.C. was also filed. The plaintiff moved 3 W.P.No.9907/10 an application purportedly U/o VI Rule 17 of the C.P.C., seeking amendment in the plaint by incorporating para 9 to the effect that it wants to seek relief of mandatory injunction. The fact incorporating the events leading him to claim the relief of mandatory injunction was also sought to be incorporated. The said application was opposed by the defendant No.4. The learned trial Judge rejected the said application basically on the ground that the para which the plaintiff wants to incorporate is a matter of record, seeking a relief of mandatory would change the nature of suit, so also relied on the proviso to Order VI Rule 17 of the C.P.C. Aggrieved by the same, the plaintiff has filed the present petition. 3. Mr.Deshmukh, learned counsel for the petitioner submits that the events that have been narrated have taken place during pendency of the suit. The defendant No.4 is a purchaser pendente lite. In view of the fact that all the events have taken place during the pendency of the suit, the question of applicability of proviso to order 4 W.P.No.9907/10 VI Rule 17 of the C.P.C. would not arise. The learned counsel further contended that the plaintiff was constrained to seek the relief of mandatory inju8nction as some construction was made by the defendant No.4 during the pendency of the suit and as such the cause of action has arisen during pendency of the said suit and the same can be adjudicated in the present suit itself, the amendment should have been allowed. 4. Per contra, Mr.Kendre, learned counsel for the defendant No.4 submits that the application for amendment was filed after the issues were framed and the matter was fixed for evidence. The application does not disclose due diligence on the part of the plaintiff. In view of proviso of Order VI Rule 17 of the C.P.C., the said application can not be considered and is rightly rejected. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of "Prakash Ratanlal @ Ratansa Kasari Vs. Bhika S/o Banda Dhage and another" reported in 2010 ALL MR (Supp.) 75. The learned counsel further contends that the said amendment 5 W.P.No.9907/10 would change the nature of the suit and that the matter of record can not be allowed by way of amendment. 5. With the assistance of the learned counsel, I have gone through the impugned order, application and say. 6. The plaintiff had filed the suit for injunction restraining the defendants from changing the green belt which is on the western side of the plot. So also restraining the defendant No.3 from alienating the open space i.e. the green belt. It is not disputed that the defendant No.4 has purchased the property during the pendency of the said suit. It is the grievance that the petitioner carried out some construction and the Commissioner's report justifies the same. The defendant No.4 has been added as a party subsequently i.e. on 7.7.2009. Thereafter, the Commissioner was appointed to inspect the suit site. The proceedings U/o 39 Rule 2-A were also taken up. The present application for amendment is filed on 13.7.2010. 6 W.P.No.9907/10 It is also accepted by the parties that the evidence has not yet begun. The events which have been tried to be incorporated have taken place during the pendency of the suit. So also the relief of mandatory injunction is necessitated because of the said events. 7. It is a trite law that the merit of the amendment is not required to be considered at the time of deciding the amendment application. The defendant No.4 will have every right to negative the contentions raised by the plaintiff even if the amendment is allowed. 8. As the events have taken place during the pendency of the suit and the defendant No.4 has also been subsequently added being a purchaser pendente lite, the judgment in a case of "Prakash Ratanlal @ Ratansa Kasari Vs. Bhika S/o Banda Dhage and another" referred supra would not be applicable, so also the rigours of proviso to Order VI Rule 17 of the C.P.C. would not be applicable. 7 W.P.No.9907/10 9. In the result, the Writ Petition is allowed. The amendment application Exh.77 is allowed on payment of costs of Rs.3,000/- (Rupees three thousand only) to defendant No.4 within a period of two weeks from today. Rule made absolute in terms of prayer clauses (C) and (D). (S.V.GANGAPURWALA,J.) asp/office/wp9907.10