(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Writ Petition No. 2536 of 2009 Shaikh Juman Chaus s/o. Shaikh Yahiya. .. Petitioner. versus Shri Narayan s/o. Shamlal Sarosiya. .. Respondent. .................. Mr. S.V. Gangapurwala, Advocate, for the petitioner. Mr. V.K. Sarosiya, Advocate, for the respondent. .................. CORAM : B.R. GAVAI, J. DATE : 22ND JUNE 2009. COURT’S ORDER : 1. By way of present petition, the petitioner challenges the order dated 19th December 2008, passed by the learned Joint Civil Judge (Junior Division), Aurangabad, below Exhibit 38 in Regular Civil Suit No. 521/2005, thereby rejecting the application filed by the petitioner (original defendant) for amendment of written statement. 2. The respondent plaintiff has filed a suit for decree of (2) possession and also for a direction to the defendant to remove the alleged illegal construction. The claim of the plaintiff is based on the basis of ownership. 3. The suit of the plaintiff was resisted by the present petitioner defendant. The petitioner has denied the claim of the plaintiff to the title of the property. In the additional written statement, the petitioner defendant has tried to set up the title in himself. After the pleadings were complete, issues were framed and the plaintiff has filed his affidavit in lieu of examination in chief. Subsequently, the petitioner has filed an application for amendment of the written statement so as to incorporate a plea of adverse possession. The said application is rejected. Hence, the present petition. 4. Mr. S.V. Gangapurwala, learned Counsel appearing for the petitioner, submits that since the issue regarding limitation has been raised after filing an affidavit of the plaintiff, the trial has not yet commenced in its correct perspective and as such, the amendment ought to have been allowed by the trial court. 5. After amendment to the Code of Civil Procedure in 2002 and specifically, by incorporating proviso to Order VI Rule 17, the position is very clear. By now, it is well settled, that if a party by way of amendment seeks to place on record the matter after commencement of the trial, it is required to satisfy the condition that in spite of exercise of due diligence, it could not have brought the matter on record prior to commencement of trial. (3) 6. Admittedly, the issues are framed and the plaintiff has filed his affidavit in lieu of examination in chief. As such, it cannot be said that the trial is yet to commence. It is also clear that had the defendant been diligent enough, he could have raised the plea of adverse possession prior to commencement of trial. 7. In that view of the matter, no perversity could be found with the approach adopted by the trial court, so as to warrant interference in exercise of extraordinary jurisdiction of this court under Article 227 of the Constitution of India. 8. The petition is, therefore, dismissed. ( B.R. GAVAI ) JUDGE ...................... bgp/wp2536