1 W.P.No.7476/11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.7476 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr.S.R.Deshpande, advocate for the petitioner. CORAM : S.V.GANGAPURWALA,J. Date : 28.09.2011. PER COURT : 1. Heard. 2. The petitioner is the original plaintiff who had filed a suit for possession. The parties led their evidence and when the matter was fixed at the stage of final arguments, the defendants moved an application for amendment in the Written Statement. The said amendment came to be allowed. Aggrieved thereby, the plaintiff has filed the present petition. 3. Mr.S.R.Deshpande, learned counsel for the petitioner submits that by amendment the legal proposition is being pleaded which is not permissible in view of Order 6 Rule 2 read with Order 6 Rule 13 of the C.P.C. For the said purpose, the learned counsel relies on the judgment of the Division Bench of this Court in a case 2 W.P.No.7476/11 of "Maharashtra State Electricity Board, by Executive Engineer, Operation and Maintenance Division, Maharashtra State Electricity Board, Bliandara Vs. M/s Madhu Sudandass and Brothers, Tumsar" reported in AIR 1966 Bombay 160. The learned counsel further contends that in view of proviso to Rule 17 of Order 6 of the C.P.C., the said amendment could not have been allowed as the same was filed after the plaintiff has led his evidence and the matter is now fixed for arguments. Even no due diligence has been shown. This aspect has not been considered by the Court nor any reasons are given in the impugned order. The learned counsel relies on the judgment of the Apex Court in a case of "Vidyabai and others Vs.Padmalatha and another" reported in AIR 2009 Supreme Court 1433. 4. The amendment which is sought is reproduced below : "18-A : as the suit of the plaintiff is heat by under the special Act, as plaintiff obtain the loan from bank thereby mortgage the property in question, therefore, right of plaintiff is extinguish operation of law. Therefore, right which is not in existence that can not be subject matter of recovery of possession of cancellation." 5. The amendment which is sought and allowed by the trial Court is only with regard to a legal aspect i.e. maintainability of the suit and the right of the plaintiff in view of the plaintiff obtaining loan from the Bank. 3 W.P.No.7476/11 6. The plaintiff has filed the suit for possession. If the Writ Petition is to be entertained, the same would be detrimental to the interest of the plaintiff inasmuch as the suit of the plaintiff is required to be stayed. Though legal defences are not required to be pleaded as per Order 6 Rule 2 of the C.P.C. and as held by the Division Bench in a case of "Maharashtra State Electricity Board, by Executive Engineer, Operation and Maintenance Division, Maharashtra State Electricity Board, Bliandara Vs. M/s Madhu Sudandass and Brothers, Tumsar" referred supra. The said amendment which is allowed would not prejudicially affect the rights of the parties. 7. Taking into account the aforesaid conspectus of the matter, I am not inclined to entertain the Writ Petition. The Writ Petition is as such dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.28.09.2011. asp/office/wp7476.11 4 W.P.No.7476/11