1 wp9520.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Yuvraj s/o Shivdas Gosavi, Age: 60 years, Occ: Agri., R/o. Massa (Khandeshwari), Tq. Kalam, Dist.Osmanabad. ...PETITIONER VERSUS The State of Maharashtra, through District Collector, Collectorate, Osmanabad and others. ...RESPONDENTS ... Mr. S.M. Kulkarni, Advocate for petitioner. Mr. D.R. Kale, A.G.P. for State. Mr. S.G. Jadhavar, Advocate for respondent Nos. 3 and 5. ... CORAM: S.S. SHINDE, J. DATE : 21ST JULY, 2011 PER COURT : This Writ Petition takes exception to the order dated 19-08-2010 below Exhibit-54 in Regular Civil Suit No. 121 of 2005 passed by 3rd Joint Civil Judge, Junior Division, Osmanabad. 2 wp9520.10 2. Learned Counsel appearing for the petitioner submits that, when this writ petition was filed at that time trial was not commenced. Therefore, this petition is filed at the stage when the trial was not commenced. It is further submitted that by way of amendment, the plaintiff wanted to seek declaration that the sale deed dated 23-11-2004 executed by defendant No. 2 in favour of defendant No. 5 is sham and void one and it is not binding on the plaintiff. Learned Counsel appearing for the petitioner further submits that, Civil Suit No. 282 of 2006 is filed by respondent No. 5 for declaration of ownership on the basis of sale deed which was executed on 23-11-2004, therefore, no prejudice will be caused to the respondents if such amendment is allowed by the trial Court. 3. Learned Counsel appearing for the respondents on oral instructions from his clients, makes a statement that, the trial is already commenced and the plaintiff has filed affidavit of 3 wp9520.10 examination in chief and even his cross examination is over. Therefore, learned Counsel would submit that, this Court may not interfere with the impugned order, since the trial is already commenced and no due diligence has been shown by the petitioner in filing application for amendment. 4. I have given due consideration to the submissions of learned Counsel for the parties. Upon reading of Order 6 Rule 17 proviso of the Code of Civil Procedure, it is clear that unless due diligence is shown, no application for amendment can be entertained. Sale deed was executed on 23-11-2004. By way of amendment, the plaintiff wanted to amend the plaint thereby seeking declaration that the sale deed dated 23-11-2004 executed by defendant No.2 in favour of defendant No. 5 is sham and void one and it is not binding on the plaintiff. 5. Trial Court considering the effect of 4 wp9520.10 such amendment if it is allowed, held that allowing such amendment would amount to condoning the delay to challenge the execution of such sale deed. Trial Court also noted that since the sale deed is executed on 23-11-2004, it was open for the plaintiff to seek such relief in respect of sale deed in the suit. However, application for amendment is filed in 2010. In the facts and circumstances of this case, and since the trial is commenced and even the plaintiff is examined and cross examined and in view of the fact that the sale deed was executed on 23-11-2004 and the suit is filed in 2005 and application for amendment of the suit is filed in 2010, this is not fit case where this Court may invoke its extraordinary writ jurisdiction. Hence Writ Petition is devoid of any merits and same stands dismissed. [S.S. SHINDE, J.] sut/JUL11