1 wp3477.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 3477 of 2010 Ramchandra Pandurang Gulgule ..Petitioner v/s. Maruti Umaji Dalvi & ors. ..Respondents Mr. H.R. Pawar for the petitioner. Mr. R.S. Patil for respondent no.1. CORAM:- B.R. GAVAI, J DATED :- JANUARY 14, 2011. P.C. By way of present Petition, the Petitioner challenges the order dated 6th March, 2010 vide which the Application filed by the present Petitioner for amendment of written-statement came to be rejected. The Learned Counsel for the Petitioner submits that an amendment which is sought to be incorporated has the basis in pleadings which are already in the written- statement. 2 wp3477.10.sxw 2. The Plaintiff has filed a suit for injunction against the defendants from interfering with his possession. The suit was resisted by filing the written-statement. It was the contention of the Petitioner that the suit property was in possession of the defendants from the year 1978. It was the contention that the suit property was sold by the pre-decessors in title of plaintiff namely Chander Ganpat Dalvi and Umaji Ganpat Dalvi for the legal necessity. It was, therefore, contended that the defendant was in peaceful possession since the period of 30 years. After the issues were framed and after the affidavit in lieu of examination-in-chief was filed by the plaintiff, the Application for amendment came to be filed praying therein to incorporate an amendment to the effect that the defendant had come into possession of document dated 5th August, 1973 and as such the defendant was in uninterpreted and unobstructed possession of property for more than 12 years and as such had become owner of the suit property by adverse possession. The said Application is rejected. Hence, the present Petition. 3. Shri Pawar, the Learned Counsel for the Petitioner submits that the Learned Trial Court has grossly erred in rejecting the Application. It is submitted that the amendment which is sought to be brought on record has 3 wp3477.10.sxw the foundation in the original pleadings and is only explanatory in nature. He, therefore, submits that the amendment ought to be allowed by Learned Trial Court. Learned Counsel for the Petitioner relies on the Judgment of the Single Judge of this Court in the case of Vijaykumar Narayanrao Dixit v/s. Uday Griha Nirman Samasya Niwarak Sanstha, Nagpur reported in 2006(3) MLJ 676. 4. Shri Patil, the Learned Counsel appearing on behalf of the defendants submits that jurisdiction exercised by the Learned Trial Court has been correctly exercised and as such no interference is warranted. No doubt it has been a consistent view that the Courts have to be liberal in grant of amendment. However, in view of the amendment to the CPC and particularly by insertion of proviso to Order 6 Rule 17 thereof, the position would be different in case of the amendment which is sought to be placed on record after commencement of trial. If the amendment is sought to be placed on record prior to commencement of trial, the Courts would be required to take a liberal view. However, if the amendment is sought to be placed on record after the commencement of trial, then it will not be permissible for the Courts to grant an amendment, which seeks to place on record the matter which with exercise of due diligence could have been 4 wp3477.10.sxw placed on record prior to commencement of trial. Reliance in this respect is placed on the Judgment of the Apex Court in the case of P.A. Jayalakshmi v/s. S. Saradha & ors. reported in (2009) 14 SCC 525. The present suit is of 2008 and would be governed by the amended provisions of CPC. Leave apart giving an explanation as to how with exercise of due diligence the applicant could not have been brought on record, the matter which is now sought to be brought on record there is not even a whisper in the Application to the effect that the Applicant could not have brought on record the said matter prior to commencement of trial with exercise of due diligence. Admittedly, affidavit in lieu of examination-in- chief is already placed on record and as such the trial has commenced. 5. Reliance placed by the Learned Counsel for the Petitioner on the Judgment of Vijay Kumar (supra) is not applicable to the facts of the present case. The Learned Judge in the said case was considering the amendment to the suit which was filed in the year 1993 and as such the said suit would be governed by unamended provisions of CPC. 6. In that view of the matter, no case is made out in the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India. The 5 wp3477.10.sxw Learned trial Court has rightly rejected the Application since the Learned Trial Court could not have allowed the Application in view of the provisions of order 6 Rule 1 of CPC. 7. The Petition is, therefore, dismissed with costs which are quantified at Rs. 3000/-. The cost be deposited in the trial Court within a period of four weeks from today. On deposit of the cost, the Respondent-plaintiff would be at liberty to withdraw the same. In the event the Petitioner- defendant fails to deposit the cost as aforesaid within the stipulated period, the defence of the defendant shall be struck off. (B.R. GAVAI, J)