1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4089 OF 2009 Amol s/o Nishkalank Mishrikotkar. PETITIONER. V E R S U S Nishkalank s/o Motilal Mishrikotkar and ors. RESPONDENTS Shri L.B. PLLOD Advocate for the petitioner. Shri Bajaj the learned counsel for resp. No.5. CORAM : B.R. GAVAI, J : DATE : 2nd JULY, 2009 PER COURT :- 1. By way of present petition, the petitioner seeks an exception to the order dated 17.06.2009 vide which the application filed by the present petitioner for amendment of plaint under order 6 Rule 17 of the Code of Civil Procedure below Exh.168 is rejected. 2. The petitioner/plaintiff has filed RCS No.177/2005 for declaration and injunction against the defendants. It appears that the suit was decreed vide judgment and decree dated 03.12.2008. An appeal was preferred against the said judgment being RCA No.42/2007 before the learned District Judge-1 Jalna who allowed the appeal and remand the matter, for further trial with certain directions. 3. After remand the evidence was recorded and when the matter was kept for hearing, an application below exh.168 came to be filed for amendment of the plaint. Said application is rejected. Hence the 2 present petition. 4. Shri Dixit, the learned senior counsel appearing on behalf of the petitioner has submitted that the learned trial court has grossly erred in rejecting the application and submitted that by way of proposed amendment the petitioner-plaintiff only wanted to amplify the pleadings which are already on record. It is therefore, submitted that for the complete adjudication of the dispute, it has been necessary that the amendment ought to have been allowed. 5. He further submits that the learned trial court has therefore erred in rejecting the application. 6. Shri Bajaj, the learned counsel appearing on behalf of the respondent No.5 has submitted that the learned trial court has rightly rejected the application and hence no interference is warranted in the present matter. 7. Though it can be seen that the learned trial court has rejected the application on the ground that averments regarding proposed amendment are already impleaded in the plaint and considering the order of remand passed by the appellate Court, it was obvious that the plaintiff was trying to protract the matter. 8. However, in so far as the amendment to the pleadings in suit filed after 01.07.2002 i.e amendment the Civil Procedure Code, is concerned, legal position is very clear. The Apex Court in case of Vidyabai and ors V/s Padmalatha and anr. Reported in 2009 (1) ALL MR 471 has clearly held that unless a party seeking an amendment after the 3 commencement of trial, satisfies the condition that matter which is sought to be brought on record by the amendment, could not be brought on record, prior to commencement of trial, inspite of exercise of due diligence, the court does not have jurisdiction to allow the application. It has been clearly held that unless the jurisdictional fact as envisaged therein, is found to be existing, the court will have no jurisdiction to allow the amendment. 10. Admittedly, in the present case, even the evidence on remand is complete and matter is fixed for final arguments. From the proposed amendment, it can be seen that, had the petitioners exercised due diligence he could have very well brought the matters on record prior to commencement of the trial. 11. In that view of the matter no case is made out. for causing interference in exercise of extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. Hence rejected. ( B. R. GAVAI ) JUDGE aaa/office/wp4089.09 ***