1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.372 OF 2009 Vijaykumar S/o.Sumantrao Kale, Age-37 years, Occu-Agriculturist, R/o.Navgan Rajuri, Tq.and Dist.Beed, Through GPA Paresh Hiraman More, Age-37 years, Occu-Agril., R/o.Shahu Nagar, Beed, Tq. and Dist : Beed PETITIONER VERSUS 1. Madan S/o.Devji Nevde, Age-64 years, Occu-Agril., R/o.Khadakpura, Beed. 2. Phoolchand Devji Nevde, Age-67 years, Occu-Agriculturist, R/o. As above. RESPONDENTS Mr.Dhananjay Deshpande, advocate for petitioner. Respondents absent even though duly served. (CORAM : A.V.POTDAR, J.) DATE : 13/07/2009 ORAL JUDGMENT : 1. Rule. 2. Rule made returnable forthwith. By the present writ petition under Article 227 of The Constitution of India, the petitioner original 2 plaintiff is challenging the order passed below Exh.45 in RCS No. 266/2007 pending on the file of Civil Judge, J.D. Beed. 3. After the writ petition is filed, notices of the present writ petition were duly served on the respondents herein and inspite of service, respondents preferred to remain absent. 4. The factual matrix which gave rise to file the present writ petition can be summarized as – The petitioner/original plaintiff herein filed RCS No.266/2007 in the Court of Civil Judge, J.D. Beed against the respondents herein for declaration of ownership and for the relief of perpetual injunction in respect of the properties mentioned in plaint para no.1. It is alleged in the plaint that the plaintiff petitioner has acquired that property under the registered sale deed dated 18/06/2007 for the valuable consideration in the sum of Rs.2,82,000/- from the original owner Mathurabai Baburao Kale, R/o. Khadakpura, Beed and claiming to be in possession of the property since the date of purchase. As the respondents defendants herein allegedly trying to obstruct the possession of the petitioner plaintiff over the suit property, the suit was filed as stated in the Court of Civil Judge, J.D. Beed. It appears that after the suit summons as well as the notice of the interim application was served on the respondents herein, they appeared in the suit and contested the suit by filing their written statement at Exh.33 before the Trial Court. This written statement appears to be mainly in two parts, the first part is appears to be denial of the facts mentioned in the plaint 3 para no.10 onwards. Further part of the written statement is by way of their explanation and their say to the facts pleaded in the plaint. It is styled under the head additional written statement, but in fact it is part of the original written statement. In the said written statement, these respondents defendants have alleged and gave the history of earlier litigation between these respondents and one Kantinath bearing RCS No.402/1991 and the decree passed therein and it is alleged that by keeping in dark the petitioner plaintiff, they have entered into the transaction of sale of the property under sale deed in question by which the property is acquired by the petitioner plaintiff. This written statement appears to be filed before the Trial Court on 11/01/2008. Considering the facts stated in second part of the written statement styled as additional written statement, an application appears to be moved at Exh.45 to carry out the necessary amendment in the plaint under Order 6 Rule 17 of CPC. This application appears to be filed on 16/07/2008. The respondents herein filed their say to this application at Exh.53 on 13/10/2008. If further appears that after hearing both the sides, learned trial court passed the order below Exh.45 on 24/11/2008 and pleased to reject the application. The impugned order is challenged in the present writ petition. 5. Heard advocate for petitioner. With his assistance, perused the record annexed with the present writ petition. As inspite of due service of the present writ petition on the respondents herein, they failed to appear in the present petition, hence the Court require to 4 consider the record available and placed before this Court in the form of copies of the papers i.e. original plaint, written statement, application for amendment and say filed by the respondents opposing and contesting the said application, and the order passed below Exh. 45 i.e. an application for amendment. The notices of the present writ petition as per the report of the Bailiff were served on 26/06/2009. After perusal of the impugned order it appears that it is observed by the learned trial court that the petitioner plaintiff was not diligent in conducting the suit and in case the proposed amendment is allowed, then it will amount to challenge the decree passed in RCS No. 402/1991 after the lapse of period of 13 years. Hence it is beyond the period of limitation. On perusal of the entire order passed by the trial court, one fact is clear that there is no amendment to the prayer clause by which the petitioner has sought the declaration or order that decree passed in RCS No.402/1991 to be set aside. Thus one fact is clear that even by way of proposed amendment, there is no challenge to the judgment and decree passed in RCS No.402/1991. In the premise, it can not be said that if the amendment is allowed, it will amount that beyond the period of limitation, the plaintiff is allowed to challenge the decree passed in RCS No.402/1991. 6. Then the next question arise whether the petitioner was diligent in prosecuting the suit. This proposed amendment is on the basis of facts disclosed in the written statement by the respondents defendant which were not within the knowledge of the petitioner plaintiff when the suit was filed. If the petitioner plaintiff came to 5 know about the fraud played upon him only after the written statement is filed by the respondent defendants then in the eye of law, a liberty be given to him to explain his case. In the premise, because of the proposed amendment as introduced by way of para no.8A after the original para no.8 and by adding defendant no.3 and 6 after the name of defendant in the cause title of the suit, neither it will change the nature of the suit nor it will brought the plaint barred by period of limitation during the limitation. If it is so, an order passed by the trial court below Exh.45 is without application of mind and perverse, and require to be interfered. Hence the order passed below Exh.45 by the trial court is hereby quashed and set aside. The application at Exh.45 to carry out amendment in the plaint is hereby allowed. 7. Rule thus made absolute in terms as indicated above. The writ petition stands disposed of with no order as to costs. (A.V.POTDAR, J.) khs/JULY 2009/wp372-09