1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.5627 OF 2009 Bhau s/o Vithoba Bhor and others. PETITIONERS V E R S U S Subhash Dhondiba Tekude and others. RESPONDENTS. Mr. V.D. Salunke, advocate for the petitioners. Mr. S.N. Gaikwad,advocate h/f Mr. N.V. Gaware, for the respondents. CORAM : S. B. DESHMUKH, J. DATE : 10th MARCH, 2010. PER COURT :- 1. Heard learned counsel Mr. V.D. Salunke for the petitioners and Mr. S.N. Gaikwad instructed by Mr. N.V. Gaware for the respondents. 2. Rule. Rule made returnable forthwith. Heard finally with the consent of the parties. 3. This writ petition is filed by the original defendants in RCS No. 205/2002. Copy of the plaint annexure 'A' is on record. Parties here-in-after are referred to as their status in the suit. RCS No.205/2002 is filed on July 26, 2002. There is no dispute among the parties pertaining to their relationship. Description of the property is given in paragraph No.1 of the suit. Suit is for perpetual injunction which is clear from the prayers made by the plaintiffs’ in the suit. Perpetual injunction is sought against the defendants from obstructing the plaintiffs possession over the suit property. A decree of perpetual injunction is sought against the defendant that they shall be restrained from committing 2 encroachment and erecting fencing on the suit property. Written statement filed by the defendant No.1 to the suit and application for temporary injunction is on record annexure 'B'. Written statement is filed on August 16, 2002. Indisputably, issues have been framed by the trial court on 09.11.2005. Annexure 'C' is the copy on record. Both the learned counsel are not aware as to whether evidence is led and/or on which date evidence was led by the petitioners. Learned counsel for the petitioners submits that date of framing of the issues i.e. 09.11.2005 can be taken to be a date for commencement of trial. According to the counsel for the petitioner, order impugned is patently illegal. Court has no jurisdiction to allow the amendment at this stage. Counsel for the petitioner has invited my attention to the Judgment of the Supreme Court in the matter of Vidyabai and others V/s Padmalatha and another reported in 2009 (4) Mh.L.J. 30. 4. Counsel for the respondents/plaintiffs pointed out reply filed by the present petitioner in trial court, opposing the application for amendment to the suit. Copy of the reply is on record. Copy of the amendment application filed by the respondent is also on record. With the assistance of both learned counsel, I have perused the order passed by the trial court below Exh.49 dated 07.03.2009. Application for the amendment is allowed, costs of Rs.200/- is saddled on the plaintiffs. Amendment was to be carried out on or before March 18, 2009. It was also carried out. 5. I have given due consideration to the submissions of the counsel for the parties. Order VI Rule 17 has been amended with effect from 01.07.2002. I have taken into account the original pleadings made in the plaint and application for seeking amendment. The prime object of the amendment is to 3 resolve the controversy amongst the parties, finally. In the case on hand, I have considered the nature of the amendment sought. One of the plaintiff, who was minor at the time of institution of the suit, attains majority. One of the plaintiff was not available for signing the plaint and that is the reason he was shown as defendant No.5 in the suit. Other events allegedly has taken place during the pendency of the suit. Grievance is raised that temporary injunction was granted by the trial court, despite this fact defendants have tried to take over the possession of the portion of the suit property which is being fenced by the plaintiffs. In alternate, relief of possession is sought from the order passed by the trial court. It appears that trial court has considered the submissions made by the parties. Trial court was of the opinion that to decide the real controversy between the parties finally application deserves to be allowed. 6. I do not see any ground for interference. Trial court did not commit any error or jurisdictional error in law. Writ Petition stands dismissed without any order as to costs. Rule discharged. ( S. B. DESHMUKH ) JUDGE. ..... aaa/5627.09