1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.2850 of 2010 M/s.J.M.Constructions ... Petitioner versus Dr.Rustom Patel & ors. ... Respondents ... Mr. G.S.Godbole i/b Ms.Pallavi Dabholkar for the petitioner. Mr.N.V. Walawalkar i/b Samir Bhalerao for respondent no.1. Ms.Ranjana Parikh for respondent nos.2 to 6. CORAM : D.G. KARNIK, J. DATED : 12th July 2010 P.C. 1. By this petition, petitioner challenges the order dated 4 March 2010 passed by the Judge, Small Causes Court Bombay rejecting the petitioner’s application for amendment of the plaint. The trial in the suit commenced in the year 2008. Affidavit in lieu of examination in chief was filed by petitioner – proprietor of the plaintiff as PW no.1 and cross examination had also commenced. At that stage, the petitioner applied to the trial court for amendment of the plaint. By the impugned order, application has been rejected. 2. Proviso to Order 6 Rule 17 of the Code of Civil Procedure says that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of 2 due diligence, the party could not have raised the matter before the commencement of the trial. Admittedly, in the present case, the application was made after the commencement of the trial. As such, the application for amendment could not have been allowed by the court unless it was satisfied that in spite of due diligence, the petitioner could not have made the application before the commencement of the trial. 3. Mr.Godbole, learned counsel for the petitioner submitted that on account of the defence taken by the respondents in their written statement, the amendment has become necessary. There is always a time gap between filing of the written statement and framing of the issues and thereafter commencement of the trial. The petitioner had an ample opportunity to apply for amendment of the plaint after the written statement was filed and before the commencement of the trial. He did not file any application for amendment but filed his affidavit in lieu of examination in chief and also suffered part of the cross examination. In my view, therefore, the fact that the amendment has become necessary on account of the defence taken in the written statement and/or framing of the issues is no ground for allowing the amendment after the commencement of the trial. There is no merit in the writ petition which is hereby rejected. 4. At the request of Mr.Godbole, learned counsel for the petitioner, interim order passed by this Court vide order dated 13 April 2010 is extended for a period of eight weeks. (D.G. KARNIK,J.)