{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3238 OF 2011 1 Sayed Haroon s/o Sayed Mahemood, age: 54 years, Occ: Business, R/o Khaja Colony, Jintur Road, Parbhani, Tq. & Dist.Parbhani. 2 Sayed Asef s/o Sayed Haroon, age: 27 years, Occ: Education, R/o as above. Petitioners Versus Sayed Abudulla s/o Sayed Mahemood, age: 53 years, Occ: Business, R/o Khaja Colony, Jintur Road, Parbhani, Tq. & District Parbhani. Respondent Mr.H.M.Padalkar, advocate holding for Mr.K.M.Babhulgaonkar, advocate for petitioners. Mr.S.S.Rathi, advocate for the Respondent. CORAM : S.S.SHINDE, J. DATE : 30 th November, 2011 ORAL JUDGMENT: 1 Heard learned Counsel for respective parties. 2 Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. {2} 3 Learned Counsel for the petitioners submits that the trial Court has erroneously allowed the application filed by the Respondent-plaintiff under Order VI Rule 17 of the Code of Civil Procedure for amendment of the plaint The trial Court allowed said application after commencement of the trial and after the plaintiff tendered evidence in the examination-in-chief. Learned Counsel further submits that there are no specific averments and dates in the application showing that after filing the suit and after framing of the issues, there was further construction carried out by the original defendants. Therefore, according to the learned Counsel for petitioners, in the absence of specific pleadings and material particulars as to on which dates after filing the suit, construction was carried out by the defendants, the trial Court, without recording reasons as to on which date or for which period construction has been carried out by the defendants, allowed the application filed by the plaintiff, which is contrary to the mandate of provisions of Order VI Rule 17 of the Code of Civil Procedure. Learned Counsel for the petitioners submits that petition deserves to be considered. Learned Counsel for the petitioners, in support of his contention, placed reliance on the following judgments (1) In the case of Revajeetu Builders & Developers Vs. Narayanaswamy & sons & others, reported in 2009 (10) SCC 84; (2) In the case of Ajendraprasadji N. Pande & another Vs. Swami Keshavprakeshdasji N. & others, {3} reported in 2006 (12) SCC 1. (3) In the case of Prakash Ratanlal @ Ratansa Kasari Vs. Bhika Banda Dhange & another, reported in 2010 (Supp.) Bom.C.R. 131; and (4) In the case of Miss Shirley Victoria Menezes Vs. Mr.Raymond De Souza & others, reported in 2011 (1) ALL MR 308; 4 On the other hand, learned Counsel for the Respondent-plaintiff invited my attention to the application which was filed for amendment of the plaint and submitted that there are averments in the application stating therein that the construction carried out by the defendants is after filing of the suit. Therefore, to avoid multiplicity of the litigation, the application was filed for amendment of the plaint thereby seeking relief of mandatory injunction and possession. Learned Counsel for the Respondent, in support of his contention, that such applications are required to be considered liberally, placed reliance on the judgment of the Supreme Court in the case of South Konkan Distilleries and another Vs. Prabhakar Gajanan Naik and others, reported in AIR 2009 SC 1177 and in particular para 8 of the said judgment. 5 I have given due consideration to the rival submissions. Upon perusal of the impugned order passed by the trial Court, it reveals that the only reasons given by the trial Court {4} are recorded in paragraphs 6 & 7 of the impugned order. From perusal of the said paragraphs, it is abundantly clear that the trial Court has not referred to any dates or any particular period on which further construction has been carried out by the defendants. May be there is some substance in the application filed by the plaintiff for amendment of the plaint. However, the trial Court should have made endeavour to find out on which dates or during which period the defendants have carried out the construction after filing of the suit. The provisions of Order VI Rule 17 proviso makes it clear that, unless it is shown that the party could not have raised the matter before commencement of trial, in that case only, if the Court is convinced that there are reasons to allow such amendment application even after commencement of the trial, the Court can allow such application. However, in the instant case, admittedly, such application was preferred after plaintiff’s evidence in examination-in-chief is tendered before the Court. Therefore, in the facts of this case, the trial Court should have been more careful to record detail reasons for allowing the amendment application. Therefore, the impugned order suffers from non recording of detail reasons while allowing the application for amendment. Therefore, ends of justice would meet if the application filed by the Respondent herein at Exhibit-32 is restored to its original file and same is directed to be decided afresh in accordance with law with further direction to the trial Court to record detail reasons while deciding i.e. either allowing or {5} rejecting the same. 6 Therefore, the impugned order dated 22.03.2011, passed by 3rd Joint Civil Judge, Junior Division, Parbhani, below Exhibit-32 in Regular Civil Suit No.99/2009, is quashed and set aside. Application at Exhibit-32 is restored to its original file. The concerned Court to decide the said application firstly and then further proceed to hear the suit. Said application to be decided within one month from the date of receipt of this order. It is needless to mention that this Court has not expressed any opinion on the merits of the application and it is left open to the trial Court to decide the same in accordance with law and after giving opportunity of hearing to the respective parties. 7 Writ Petition is allowed to the above extent and same stands disposed of. No order as to costs. S.S.SHINDE JUDGE adb/wp323811