1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7205 OF 2009 Rajabhau s/o Vasudeocharya Karhade .. PETITIONER VERSUS Sharad s/o Devidasrao Pande & others .. RESPONDENTS Mr. Sanjivani Deshmukh Ghate, Advocate for the petitioner. Mr. Sarang P Joshi, Advocate for respondent no.1. ===== CORAM : R. M. BORDE, J. DATE : 19th MARCH, 2010 PER COURT : 1 An application tendered by the petitioner / original defendant no. 1 seeking amendment to the written statement in pending suit came to be rejected by the trial court and the said order is impugned in this petition. 2 Respondents / original plaintiffs presented suit claiming declaration of ownership and perpetual injunction against the defendants. It is needless to 2 go into the factual details of the matter. On presentation of the suit, defendants caused appearance and filed written statement on 10-3-2004. In the year 2009, after five years, defendant tendered an application seeking amendment to the written statement. By way of the proposed amendment, the defendant wants to contend that the marriage of one Subhadrabai with Rajacharya was void. It is contended that the defendants were not aware of this fact and after gathering the information they have approached the court seeking necessary amendment. In the written statement, presented earlier, a stand is taken by the defendants that deceased Subhadrabai was the second wife of Rajacharya. It is no where contended in the written statement that the marriage between said Rajacharya and Subhadrabai was void. It is to be noted that after presentation of written statement in the year 2004, defendants did not take any step till 2009. Issues in the matter were framed on 16-6-2009 whereas the plaintiffs have presented affidavit in the form of examination in chief on 6-10-2009. Trial in the suit has thus commenced. Trial court, therefore thought it appropriate to reject the application as there are no reasons set out in the application as to what were the circumstances due to which, inspite of exercise of due diligence, the defendants were prevented from presenting the application seeking amendment, earlier. 3 3 I have perused the impugned order passed by the trial court. Heard arguments advanced by learned counsel for the respective parties. Learned counsel for the petitioner contends that the court is required to take liberal view in the matters concerning amendment to the pleadings, more particularly, when the amendment is sought in the written statement. Learned counsel for the petitioner seeks leave to place reliance on the judgment in the matter of Baldev Singh and others vs. Manohar Singh and another reported in (2006) 6 Supreme Court Cases 498. In paragraph no. 17 of the judgment the Apex court has observed thus : 17 Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for 4 amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings. . Learned counsel for the respondents seeks leave to place reliance on a judgment in the matter of Vidyabai and others vs. Padmalatha and another reported in 2009(1) ALL MR 471. The Apex Court while dealing with proviso to Order 6 Rule 17 of the Code of Civil Procedure has ruled that the proviso to order 6 Rule 17 of the Code of Civil Procedure couched in mandatory form and the court's jurisdiction to allow application presented after commencement of trial is taken away unless the conditions precedent prescribed in rule 17 thereof are satisfied. It is recorded in paragraph no. 7 of the judgment thus : 7 By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order 6, Rule 17 of the Code, which reads as under : . "Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." . It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz., 5 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. . It is observed by the Apex court that the judgment in the matter of Baldev Singh and others vs. Manohar Singh and another (cited supra) is not an authority for the proposition that the trial would be deemed to have commenced on the date of first hearing. In that case, the documents were yet to be filed and, therefore, it was held that the trial did not commence. . In the instant matter, as stated earlier, issues were framed on 16-6-2009 and the plaintiffs have also presented affidavit in the form of examination in chief on 6-10-2009. Trial thus commenced on framing of issues as laid down by the Apex court in the matter of Vidyabai and others vs. Padmalatha and another (cited supra). Another reason for refusal to entertain the application is that the defendant has not satisfied requirements noted in the proviso to Order 6 Rule 17 of the Code of Civil Procedure as no justifiable reasons have been stated as to what were the circumstances which prevented the defendants from raising the defence earlier. In this view of the matter, I am of the opinion that the decision rendered by the trial court is reasonable and proper and does not call for any interference. In exercise of extra ordinary jurisdiction under Article 227 of the Constitution of India, no interference is 6 called for in the instant petition. Petition therefore stands rejected summarily. 4 In view of dismissal of petition, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/wp7205.09.odt