1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO.3608 OF 2009 1. ABDUL RAZAQUE ABDUL WAHED, R/O. NEAR KIRAN BICHHAYAT KENDRA, OLD GINNING FACTORY, R/O. BALAPUR, TQ. BALAPUR, DISTRICT : AKOLA. .. PETITIONER/S. VERSUS 1. CHANDRASEN CHAMPALAL SHAH, R/O. BALAPUR, TQ.BALAPUR, DISTT. AKOLA. .. RESPONDENT/S. _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri B.N.Mohta, Advocate for Petitioner. CORAM : R.C.CHAVAN, J. DATED : AUGUST 26, 2009. 1. Heard. 2. This petition is directed against an order passed by learned Civil Judge Junior Division, Balapur allowing amendment to the plaint, whereby he permitted addition of the words “Karta of joint Hindu family” after the name of the plaintiff in the title of the suit. This amendment was allowed after the trial was over and the matter was fixed for final arguments. The petitioner /defendant is not a member of that joint family. He has been sued as an encroacher. 2 3. The learned counsel for the petitioner placed reliance on a judgment of this Court in Jainarayan Babulal Goenka Vs. Damodar Ratanlal Gandhi, reported in the form of Note-72 in 1961 N.L.J. 25. In that case the facts were different. The plaintiff was described as “Jainarayan Babulal Goenka”. The suit was signed by one Inderchand Babulal Goenka and then plaint was sought to be amended to mention the name of the plaintiff as “Jainarayan Babulal Goenka, a joint Hindu family firm through Karta Inderchand Babulal Goenka”. Such are not the facts of the present case. 4. The learned counsel for the petitioner also placed reliance on a judgment of the Supreme Court in Vidyabai Vs. Padmalatha, reported at (2009)2 SCC 409. In that case by amendment, after the issues were struck, a will dated 18.03.1994 was sought to be pleaded. The observations that such amendment could not be allowed without a finding that inspite of due diligence, party could not introduce the amendment before trial commenced, came in that context. 5. There can be no doubt that after the amendment to Rule 17 of Order VI of the Code of Civil Procedure an application for amendment should not be allowed after the trial has commenced, unless the Court comes to a conclusion that in spite of due diligence the party could not have raised the matter before commencement of the trial. It can also not be disputed that, in this case, the very nature of amendment 3 shows that the words could have been inserted even when the plaint was filed. There is really no reason why the plaintiff chose to sleep over the matter till the proceedings were ripe for arguments. 6. All the same, it has to be noted that there is no new plea sought to be raised, only description of the plaintiff is sought to be corrected and given the nature of controversy, namely that the plaintiff was seeking to have the defendant ejected as an encroacher such change in description is unlikely to alter the status of the parties. The contention of the learned counsel for the petitioner that this would amount to substituting a new plaintiff in place of the original plaintiff has to be rejected, since it is not the petitioner’s case that he claims to be in possession through any member of plaintiff’s joint family. 7. In view of this, no interference is called for in the interlocutory order passed in exercise of discretion by the learned trial Judge, the petition is, therefore, dismissed. JUDGE RR.