1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.6269 OF 2009 Ganesh s/o Shivajirao Karhad and another Petitioners. V E R S U S The State of Maharashtra and others. Respondents. Shri Sachin Deshmukh, Advocate for the petitioners. AGP for State R-1 and 2. Mr. M.A. Kulkarni adv. for R-3 and 4. R-5 and 6 served. CORAM : B. R. GAVAI, J : DATE : 25TH NOVEMBER, 2009. PER COURT :- 1. Rule. Rule made returnable forthwith. Heard by consent. 2. Leave to amend the prayer clause. 3. By way of present petition, the petitioner impugns the order dated 06.02.2009 vide which the application filed by the present petitioner for amendment of plaint came to be rejected. 4. The petitioner plaintiff has filed a suit initially for declaration of ownership and perpetual injunction in respect of suit land. The plaintiff had also filed an application under Order 39 Rule 1 and 2 of Civil Procedure Code. Same was rejected. 2 5. Contending that after the rejection of application for temporary injunction, the defendants have forcibly dispossessed the petitioner, an application for amendment came to be filed under Order 6 Rule 17. Same is rejected. Hence, present petition. 6. Shri Deshmukh, the learned counsel appearing on behalf of the petitioner submits that the application was required to be filed since the petitioner was dispossessed during the pendency of the suit. He makes a categorical statement that even issues are not yet framed in the suit and as such, the trial is yet to commence. 7. Smt. Kulkarni, the learned counsel appearing on behalf of respondents No.3 and 4, submits that present application is not maintainable in view of proviso to Order 6 Rule 17 of the C.P.C. She submits that the petitioner has not pointed out as to how inspite of exercise of due diligence the petitioner-plaintiff could not have placed on record, the matter which is sought to be placed on record now. She further submits that even a cause of action is not mentioned in the averments which is sought to be brought on record, by amendment. She therefore submits that no interference is warranted. 8. From the perusal of the averments which are sought to be brought on record by way of amendment, it can be seen that the petitioner- 3 plaintiff seeks to contend that after rejection of an application for temporary injunction, the petitioner plaintiff came to be dispossessed. It is thus clear that by way of amendment, petitioner is seeking to place on record subsequent events. It can therefore be seen that the amendment became necessary in view of subsequent events. 9. In so far as first contention made by the learned counsel for the respondent regarding due diligence is concerned, it has to be seen that said proviso requires that an application for amendment after commencement of trial, is not to be entertained, unless a condition is satisfied that matter which is sought to be placed on record, could not have been brought on record prior to commencement of trial, inspite of exercise of due diligence. Here, the trial is yet to commence. Moreover, the amendment pertains to subsequent events and as such, said averments could not have been pleaded at the time of filing of the suit. 10. In so far as the contention raised by the learned counsel for the respondent, regarding the averments not stating as to when the plaintiff was dispossessed and therefore, there being no cause of action is concerned, it is settled law that while considering an application for amendment, the court is not expected to consider the merits of the matter. From the perusal of the impugned order, it would reveal that the trial court has discussed the merit 4 and rejected the application after considering merits of the matter. Therefore, in my considered view, the learned trial court has exercised jurisdiction with material irregularity. 11 It is also settled law that Courts have to be liberal in the matter of grant of amendment. However, this shall be subject to restraint put by proviso to Order 6 Rule 17 by the amendment to C.P.C in 2002. However, as already discussed herein above, said proviso would not be applicable to the facts of the present case. In the result, rule is made absolute in terms of amended prayer clause ‘A’. 12. Needless to state that I have not considered the merits of the matter while allowing the petition. Further, needless to state that, the respondent-defendant would be at liberty to amend the written statement as a consequence of amendment to the plaint. ( B. R. GAVAI, J. ) ..... aaa/6269.09