1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.6687 OF 2010 Kadubai Raosaheb Navthar and another. ..PETITIONERS -VERSUS- Kalyan Chagan Thorat and others. ..RESPONDENTS ......... Mr.H.D. Deshmukh, advocate for petitioners. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 11 st August, 2010. PER COURT : 1. Heard. 2. The amendment application filed by the defendants/petitioners vide Exh.52 in Civil Suit bearing Regular Civil Suit No.233/2006 came to be rejected. They wanted to amend the written statement by introducing the paragraph no.13-A to the effect that as per the compromise in the earlier suit (R.C.S. No. 143/1976), the land was measured and thereafter the work of leveling the land was carried out, and therefore, their possession including the trees in the boundary limits is intact. The trial Court rejected the application on the ground that the proviso appended to Order 6 Rule 17 of Civil Procedure Code does not permit such amendment in view of the "Vidyabai & Ors. V/s Padmalatha & Anr." {2009 (1) All M.R. 471}. The counsel would submit that this 2 Court in "Vijaykumar Narayanrao Dixit V/s Uday Griha Nirman Samasya Niwarak Sanstha, Nagpur" { 2006(3) Mh.L.J. 676} held that amendment can be allowed if the party had discovered the mistake of earlier counsel after recording of the evidence of the first witness. It is contended that the amendment can be permitted even though the suit is at the stage of evidence, if it is found that same is necessary for the purpose of final and effectual adjudication thereof. 3. Clinching question as to whether the petitioner was unable to introduce such pleading at the time of filing of the Written Statement. It is nobody's case that the petitioner was unaware of the compromise decree in the earlier suit. He could have located with due diligent that the land was measured and the work of leveling the land was carried out in pursuance to the terms of the compromise rendered in previous suit bearing R.C.S. No. 143/1976. Inspite of this, such plea was not raised at the time of filing of written statement and before commencement of the trial. In this view of the matter, the trial Court was right in holding that no jurisdiction was available to allow the amendment in view of the case of Vidyabai and another (supra). The Petition is dismissed. (V.R.KINGAONKAR) JUDGE gas/wp6687.10