1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 44. WP/6012/2010 PRAKASH NAMDEORAO KAKADE AND ORS V/S KALYANRAO BHANUDASRAO KAKADE) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. B.R.Kedar, Adv., for the petitioner. Mr.D.J.Choudhari, Adv., for repsondent (sole). ... CORAM: K.U.CHANDIWAL, J. DATE:12/10/2010 1. RCS No.153/2002 was filed by the plaintiff. After issues, matter was at the stage of recording evidence. The plaintiff moved application seeking amendment of the plaint. The grievance of the defendant is, the suit is filed after amendment to Code of Civil Procedure and, after amendment, the effect of Order 6 Rule 17 Proviso thereto of Code of Civil Procedure will be applicable with all force. 2. Learned Counsel for the writ 2 petitioner has placed reliance to the judgment of the Apex Court in the matter of Vidyabai Vs.Padmalatha (2009(4) Mh.L.J.30). In the said judgment, the Hon'ble Lordships of the Apex Court have held, if no grounds are incorporated in the amendment application and after the proviso, the position of effecting the amendment is diluted. 3. Learned Counsel for the plaintiff/respondent invited my attention to the four boundaries given in the cause title of the plaint and paragraph no.5 to impress as to how the amendment is necessitated by subsequent events . The law is again settled in Rajkumar Gurawara (Dead) Thr.L.Rs. Vs. S.K.Sarwagi & Co.Pvt.Ltd. and Anr ( 2008(4) Supreme 435: 2008 AIR (SC) 2303), such change of circumstances is of no avail in terms of Order 6 Rule 17 of C.P.C. 4. Learned Counsel Mr. D.J.Choudhari took recourse to the 3 judgment of the learned Judge of this Court in the matter of Union of India V. Rajkumar Agrawal (2006 (6) Mh.L.J.765, to the judgments in the matter of Krishnaji Shankar Moghe V. Sitaram Gangadhar Shende ( 2003(1) Mh.L.J. 233) and the judgment and order of the Apex Court in Surinder Singh Vs. Kapoor Singh (2005 (3) Mh.L.J.747) where the Hon'ble Lordships of the Apex Court, as on 3.5.2005, have observed, the application for amendment of the plaint can be filed at any stage of the proceedings. There cannot be any controversy as to the views expressed by the Hon'ble Apex Court as on 3.5.2005, however, the position of law, in the fact situation, will also have its impact. It was a suit for specific performance in terms of Section 20 where the agreement of sale of land was in controversy between the appellant and his sister seeking equal shares. The Lordships also considered effect and import of Section 12 of 4 Specific Relief Act. No such eventuality emerged in the fact situation of the present case. 5. In the matter of B.P.C.L. Vs. Precious Finance Investment Pvt.Ltd ( 2007(1) Mh.L.J. 331), the proviso was sought to be explained, however, the position of proviso is clarified in the matter referred above. Consequently, the observation of the learned Single Judge, dt. 20.10.2006, will not be of any avail in the light of the pronouncement of the Apex Court dt.12.12.2008 in the matter of Vidyabai (supra). 6. Taking survey of all the facts, I find that the amendment application, which the learned Judge has allowed, was beyond the scope of powers vested in him, warranting interference in terms of Art.227 of the Constitution of India. Consequently, writ petition is allowed. The order is set aside. The suit is to be treated with 5 original position between the litigants. No costs. (K.U.CHANDIWAL) JUDGE ... AGP/6012-10wp