1 WP No.5029/11 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5029 of 2011 Pandurang Shankar Mhatre and others ... Petitioners versus Mr.Makarant Shashikant Vanarase & Anr ... Respondents ... Mr.Rahul M. More for the petitioners. CORAM : D.G. KARNIK, J DATED : 29th July 2011 P.C. 1. This petition is directed against the order dated 14 March 2011 allowing the application of the defendant no.1 (for the sake of convenience parties are referred to by their status in the suit) for recalling the witness of the plaintiff for further cross examination. 2. Evidence of the plaintiff was recorded some time prior to October 2010. Evidence of defendant nos.1 and 2 was also recorded and concluded on 16 October 2010. Thereafter, the plaintiff made an application for amendment of the plaint and by an order dated 31 March 2011 the amendment was allowed. After the amendment was allowed and carried out, the defendant no.1 applied for recalling the plaintiff and his witnesses for further cross examination. According to him, further cross examination was necessary in view of the amendment made in the plaint. The application was allowed. That order is impugned in this petition. 2 WP No.5029/11 3. It may be noted that the suit has been filed in the year 2006 i.e. after the amendment of Order 6 Rule 17 of the Code of Civil Procedure (for short “the Code”) and inclusion of proviso thereto. The proviso to Rule 17 of Order 6 provides that the application for amendment shall not be allowed after the commencement of the trial unless the court is satisfied that party seeking the amendment could not have pleaded facts sought to be added by amendment before the commencement of the trial. It may be noted that in the teeth of the proviso to Order 6 Rule 17 of the Code and without recording any finding as to whether the application for amendment was barred by proviso to Order 6 Rule 17 of the Code, the amendment was allowed, despite opposition by the defendant. All that the defendant wanted after allowing the amendment was to recall the plaintiff and his witnesses for further cross examination in view of the amendment. If new pleading has been allowed after the evidence of the plaintiff is over, the defendant obviously could not have an opportunity to cross examine the plaintiff in respect of the pleadings added by the amendment. In the circumstances, the interest of justice requires that he must be given an opportunity to cross examine the plaintiff and his witnesses, if necessary by recalling them. The impugned order serves ends of justice and calls for no interference in exercise of an extra ordinary jurisdiction under Article 227 of the Constitution of India. 4. Petition rejected. (D.G.KARNIK, J)