1 WP 4720.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4720 OF 2011 1. Sau. Premla Nehru Gadhve Age : 47 Years, Occ. : Household, R/o : Kolkanadi, Tq. Ambajogai Dist. Beed. 2. Nehru Shankar Gadhve Age : 56 Yrs., Occ. Agril., R/o : Kolkanadi, Tq. Ambajogai Dist. Beed. .... PETITIONERS V E R S U S Bibhishan Maroti Bhandare Age : 39 Years, Occ. Agril. R/o : Kolkanadi, Tq. Ambajogai Dist. Beed. .... RESPONDENT Mr. V.V. Bhavthankar, Advocate for the Petitioners. Mr. Gaikwad, Advocate for the Respondent. CORAM :S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 29/08/2011 2 WP 4720.2011 - [ J ] ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing. 2. Heard the learned counsel for the respective parties. 3. The present petitioners are the original defendants. The present respondent has filed Suit for simplicitor injunction. The plaintiff and the defendants both have adduced the evidence. After the closure of their evidence and though the matter was fixed for final arguments, the plaintiff moved an application seeking amendment in the map annexed with the plaint i.e. regarding the bandh. The said application is allowed. Aggrieved thereby, the present Writ Petition is filed. 4. Mr. Bhavthankar, the learned counsel for the petitioners submits that in fact after the matter was fixed for final arguments, the present application was made and unless and until the plaintiff shows due diligence as contemplated in proviso to Order VI Rule 17 of the Code of Civil Procedure, the application 3 WP 4720.2011 - [ J ] could not have been entertained. The learned Judge has lost sight of the said fact. According to the learned counsel, the parties led their evidence on the basis of the bondaries as stated in the Map annexed with the plaint. Now, if the same are allowed to be changed, that would prejudicially affect the petitioners. 5. Mr. Gaikwad, the learned counsel for the respondent/original plaintiff submits that the trial Court after considering the relevancy of the amendment, has allowed the said application. The Court has exercised the same properly. The said amendment was initiated for the effective adjudication of the dispute. The amendment can be made at any stage of the Suit. According to the learned counsel, the proper reasons have been given by the Court while allowing the said application. Even the application for amendment gives the reasons about the relevancy of the amendment. 6. The pleadings are of the year 2005 i.e. after the introduction of proviso to Order VI Rule 17 of the Code of Civil Procedure [ For short, ‘ the Code ’ ]. 4 WP 4720.2011 - [ J ] 7. With the assistance of the learned counsel for the parties, I have gone through the impugned order. 8. The Order nowhere shows that the Court has considered the aspect of due diligence. The proviso to Order VI Rule 17 of the Code is also required to be considered while considering the application for amendment along with all other requirements. No doubt, the proviso to Order VI Rule 17 of the Code would not render the Court without jurisdiction to deal with the application for amendment, but then the Court has also to consider the said proviso and its effect while determining the said application. 9. From the perusal of the impugned order, it is manifest that the Court has not considered the said aspect. 10. In light of the above, the impugned order is quashed and set aside with a direction that the Court shall decide the said amendment application afresh after considering all the aspects including proviso to Order VI Rule 17 of the Code. 5 WP 4720.2011 - [ J ] 11. The Writ Petition is accordingly dismissed. Rule as such is made absolute. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 4720.2011 - [ J ]