1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.7481 OF 2007. 1. Shahaji S/o Kerba Yellurkar, Age 54 years, Occ.Agri., 2. Shivshankar S/o Kerba Yellurkar, Age 38 years, Occ.Agri., ... Petitioners. Versus 1. Dr.Shivhar S/o Kerba Yellurkar, Age 49 years, Occ.Medical Officer, R/o Samangaon, Tq.Dist.Latur, at present residing at Latur. 2. Shakubai W/o Rajeshwar Jhunje, Age major, Occ.H.H. R/o Harangul (Khurd), Tq. and Dist. Latur. 3. Damyanti W/o Vijaykumar Chandankele, Age major, Occ.H.H. R/o Pangaon, Tq.Renapur, Dist.Latur. 4. Shivkanta W/o Baswaraj Mule, Age major, Occ.H.H. R/o Hangarga, Tq.Nilanga, Dist.Latur. 5. Shivdarshan S/o Kerba Yellurkar, Age 52 years, Occ.Agri.,R/o Moti Nagar, Latur, Tq. & Dist.Latur. 6. Gurunath S/o Kerba Yellurkar, Age 44 years, 2 Occ.Agri., R/o Manjara Shetkari Sakhar Karkhana, Chincholi Rao Wadi, Tq. & Dist.Latur. 7. The Managing Director, Manjara Shetkari Sahkari Sugar Factory Ltd., Vilas Nagar, Chincholiraowadi, Tq. Dist. Latur. 8. The Managing Director, Vikas Shetkari Sakhar Karkhana Ltd.,Vaishali Nagar, Neoli, Tq. & Dist.Latur. ... Respondents. ... Mr.R.B.Deshmukh, advocate for the petitioner. Mr.V.P.Kadam, advocate holding for Mr.S.P.Urgunde, advocate for the Respondent No.1. Mr.S.N.Boiwar, advocate for the Respondent No.2 absent. Mr.A.D.Shinde, advocate holding for Mr.V.D.Hon, advocate for the Respondent No.7. ... CORAM : V.R.KINGAONKAR,J. Date : 15.01.2010. PER COURT 1. Rule, Rule made returnable forthwith and heard finally. 2. The petitioners are original defendant Nos.2 and 5 in relation to suit filed by the Respondent No.1 (RCS No.557/2007) for partition and separate possession. The suit properties 3 comprise of three (3) agricultural lands and three (3) house properties. The Respondent No.1 approached the Civil Court with a case that the suit properties are owned by the joint Hindu family and, therefore, are liable for partition. It is not necessary to elaborately set out the rival pleadings. Suffice it to say that original defendant No.1-A Lochanabai was the mother of the present petitioners and she died during pendency of the suit on 30.4.2007. The petitioners submitted application for amendment of the written statement on 28.8.2007 alleging that said defendant No.1-A Lochanabai had bequeathed her undivided share in their favour, equally, by virtue of a Will-deed. They submitted that they were entitled to inherit the share of deceased defendant No.1-A Lochanabai as her legatees. 3. The amendment application was opposed by the Respondent No.1 (plaintiff) on the ground of delay and for the reason that the trial had already commenced. It appears that the plaintiffs' evidence was recorded. The learned Civil Judge rejected the application for 4 amendment on the ground that it was filed at belated stage though death of the mother was known to the petitioners and moreover, for the reason that in view of proviso appended to Order VI Rule 17 of the C.P.C., the amendment could not have been allowed after commencement of the trial. This order is subject matter of challenge in this petition. 4. Heard learned counsel. 5. On perusal of the impugned order, it is amply clear that the learned Civil Judge was of the opinion that with due diligence the petitioners could have staked the claim on the basis of Will-deed. The learned Civil Judge also opined that at fag end of the trial it would have been improper to consider the issue regarding due execution of the Will-deed. The trial Court further held that share of the deceased defendant No.1-A was yet to be determined and, therefore, it was not necessary to permit the amendment. 6. Question involved in the petition is 5 whether really there was a considerable delay in filing of the amendment application and that the rejection of the same is justified in view of embargo put on exercise of such power vide the proviso appended to Order VI Rule 17 of the C.P.C. 7. There can not be duality of opinion that each case has to be examined on strength of the fact situation obtained in such a case. There can not be any straight jacket formula applicable to all the situations The purport of legal embargo in disallowing the amendment after commencement of the trial is to avoid undue delay and dissuade a party from protracting the trial. In an appropriate case, amendment can be allowed if it is demonstrated that with due diligence the application could not have been moved before commencement of the trial. In the present case, the Will-deed relied upon by the petitioner is unregistered document. On perusal of the copy of the Will-deed (Exh.C) it emerges that the Will- deed was executed on 22.4.2007 i.e. hardly about a week before death of the deceased defendant No. 6 1-A. It is but natural that after death of their mother, the petitioners were under spell of grief for certain period. The petitioners did not seek any substantial change in the pleadings shown in the written statement. The nature of the suit would not have altered due to the proposed amendment. The very purpose of such amendment was to demonstrate that if at all the suit for partition was to be decreed then the Respondent No.1 (plaintiff) and other natural heirs of the deceased defendant No.1-A - Lochanabai may not get any share but that her share could be equally given to the petitioners. The amendment application was moved on 28.8.2007 i.e. within about three (3) months of the death of the mother. It could not be branded as a time barred or excessively belated application. 8. Mr.V.P.Kadam, learned advocate holding for Mr.Urgunde, advocate appearing for the Respondent No.1 submitted that there was no due diligence and, therefore, amendment application after commencement of the trial could not be permitted. He invited my attention to certain 7 observations in "Vidyabai and others Vs. Padmalatha and another" (2009) 2 Supreme Court Cases 409 and "Ajendraprasadji N.Pande and another Vs. Swami Keshavprakeshdasji N. and others" AIR 2007 Supreme Court 806. The Apex Court, in the given cases, held that amendment after commencement of the trial could not be allowed unless it is proved that inspite of due diligence the party could not have raised the matter before the commencement of the trial. In the instant case, it is not the finding of the trial Court that the hearing of the trial had commenced prior to death of the deceased defendant No.1-A. The amendment application was moved within a reasonable period after her death. The death of the mother could not be contemplated by the petitioners when they had filed the written statement nor the plea of their status as legatee was available to them at the relevant time. Under the peculiar circumstances, it will have to be said that the application could be allowed in order to adjudicate the issue regarding availability of the undivided share of the deceased defendant No.1-A Lochanabai for the 8 purpose of partition. It can not be said that the application was moved with some ulterior motive to protract the litigation. Considering the foregoing reasons, the impugned order is unsustainable and liable to be interfered with. 9. In the result, the petition is allowed. The impugned order is set aside. The amendment application shall be allowed and the petitioners may be permitted to amend the written statement as prayed for. Rule made absolute accordingly. No costs. (V.R.KINGAONKAR,J.) asp/office/wp748107