1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2718 OF 2009 Dilip s/o. Kanhyalal Lalwani and 3 others .. petitioners Versus Gulabchand s/o. Chaganlal Lalwani and another. .. Respondent. --- Mr. S.G. Chapalgaonkar, Advocate for the petitioners Mr. Sonpawale, Advocate for the respondent Nos 1 and 2. CORAM : B.R. GAVAI, J. DATE : 14th July, 2009. ORAL ORDER :- 1] Rule. Rule made returnable forthwith. By way of present petition, the petitioner challenges the order dated 13th February, 2009, vide which the application filed by the present petition, for amendment of the plaint so as to implead the defendant No.3 as party respondent and certain averments 2 regarding the property sold by rest of the defendants to the defendant NO.3 and the user of the property in question by the said defendant, came to be rejected. 2] The petitioner has filed a suit originally against the defendant Nos. 1 and 2 for partition. After the issues were framed , the petitioner has filed an affidavit in lieu of examination in chief. It appears that thereafter the petitioner has filed an application for amendment of the plaint. The same is rejected. Hence the present petition. 3] Shri Chapalgaonkar, learned counsel for the petitioner submits that the learned trial court has grossly erred in rejecting the application inasmuch as the said application pertains to the subsequent events. Shri Sonpawale, learned counsel for the respondents on the contrary submits that the learned trial court has rightly rejected the application inasmuch as the matter is fixed for evidence and as such the application for amendment was not tenable. 4] From the perusal of the record, it would appear that initially the suit is filed by the present petitioner against the present respondents. IN the said suit, an application came to be filed for amendment submitting therein that the defendant had sold the part of the suit property to one Bhanudas Ganpati Hazare, that said Bhanudas Hazare be impleaded as defendant No.3 and that the said Bhanudas Hazare was illegally put in possession of the part of the suit premises and he was using the said premises. It is clear that the petitioner has specifically averred that the amendment which is sought to be carried out was pertaining to the fact which was noticed on 17/6/2008 i.e. the date on which he had gone to Padali to supervise the suit property. It is thus clear that it could not have 3 been possible for the petitioner to have brought the matter on record inspite of exercise of due diligence, prior to the commencement of the trial. The proviso to Order 6 Rule 17 of the C.P.C. restricts the power of the court in grant of amendment after commencement of trial. The only requirement is that, the party has to satisfy the condition that the matter sought to be brought on record could not have been brought on record inspite of exercise of due diligence prior to commencement of the trial. I find that, since the amendment which is sought to be brought on record pertain to the subsequent development and as such, it would not be hit by the proviso to Order 6 Rule 17 of C.P.C. I, therefore, find that the learned trial court has erred in rejecting the application for amendment. It is settled law that the court is not required to go into the merits of the matter at the stage of grant/refusal of amendment. Even otherwise, the respondents would always be at liberty to counter the averments made by way of amdnement. 5] In the result, Rule is made absolute in terms of prayer clause (B) and (C). Needless to state that the respondents would be at liberty to amend their written statement so as to incorporate the pleadings to counter the averments made by the petitioner by way of amendment. [B.R. GAVAI,J.] Grt/- 4