:1: IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 400 OF 2011 1. Piedade Antonio Cipriano Dias H.No.511, Dialgona, Navelim, Salcete, Goa. … Petitioner V e r s u s 1. Francisco Aureliano Dias and his wife, 2. Santana Dias 3. Vicitacao Gonsalin Dias and his wife, 4. Reena Dias, 5. Dumena Pereira, All residents of H.No.507, Deagona, Telauim, Salcete Goa. … Respondents Mr. C. A. Coutinho, Advocate for the petitioner. Mr. V. Rodrigues, Advocate for respondent nos. 1 and 2. CORAM : F. M. REIS, J DATE : 17 th DECEMBER, 2011 . ORAL JUDGMENT Shri C. A. Coutinho, learned Counsel appearing for the petitioner seeks leave to delete the names of respondent :2: nos. 3 to 5. As such, the names of respondent nos. 3 to 5 are deleted at the risk of the petitioner. 2. Rule. Heard forthwith by consent of learned Counsels. 3. Shri V. Rodrigues, learned Counsel waives service on behalf of respondent nos. 1 and 2. 4. The above petition challenges the order dated 9.2.2011 passed by the learned Civil Judge Junior Division, Margao, whereby the application for amendment filed by respondent no.1 dated 21.1.2011 came to be allowed. 5. Shri C. A. Coutinho, learned Counsel appearing for the petitioner has pointed out that by the proposed amendment, respondent no.1 is taking self destructive plea. The learned Counsel further pointed out that the petitioner and the respondent no.1 are brothers and according to him, the alleged claim of mundkarship sought to be incorporated by respondent no.1 is only to delay the proceedings with malafide intention. The learned Counsel further pointed out that the application for amendment has been filed only after :3: substantial cross examination of PW1 was completed by respondent no.1 and as such the petitioner was precluded from filing the application for amendment in view of the proviso incorporated under Order VI Rule 17 of Civil Procedure Code by Amendment Act, 2002. The learned Counsel has taken me through the application filed by respondent no.1 and pointed out that the application even does not disclose the nature of the pleadings sought to be incorporated by the respondent no.1. The learned Counsel further pointed out that the learned Judge has not at all applied its mind to the well settled principles of law in granting the application for amendment and as such the impugned order deserves to be quashed and set aside. In support of his submissions, the learned Counsel relied upon a judgment of the Apex Court reported in 2009(1) ALL MR 471 in the case of Vidyabai and other V/s Padmalatha and Another. 6. On the other hand, Shri V. Rodrigues, learned Counsel appearing for respondent nos. 1 and 2 has supported the impugned order. The learned Counsel has pointed out that the contentions of the petitioner that the respondent no.1 has taken self destructive plea is untenable as according to him, the proposed amendment was only clarificatory in nature. :4: The learned Counsel further pointed out that in the original pleadings there was already a plea of mundkarship and respondent no.1 wanted to give particulars in support of such claim by the proposed amendment. The learned Counsel further pointed out that there is no case made out by the petitioner for interference in the impugned order in exercise of jurisdiction of this Court under Article 227 of the Constitution of India. The learned Counsel as such submitted that the petition deserves to be rejected. 7. Having heard the learned Counsel and on perusal of records, I find that in the application filed by respondent no.1 dated 21.01.2011, there is nothing disclosed or suggested as to what prevented the respondent no.1 from filing the application for amendment before trial of the suit had commenced. Even the learned Counsel appearing for the respondents was unable to point out any specific averments in the said application to that effect. Considering such averments were not found in the application, I find that the learned Judge had exceeded its jurisdiction in allowing the application for amendment. The Apex Court in the said judgment in the case of Vidyabai and other ( supra ) has held at paras 7 and 8 thus : :5: “7. By reason of the Civil Procedure Code ( Amendment) Act, 2002 ( Act 22 of 2002 ), the Parliament inter alia inserted a proviso to Order 6, Rule 17 of the Code, which reads as under : “ Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. 8. From the order passed by the :6: learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition.” 8. Taking into consideration the said judgment of the Apex Court, I find that the learned Judge was not justified to allow the application for amendment when the application did not fulfill the requirements as envisaged under Order VI Rule 17 of Civil Procedure Code after the amendment in the year 2002. Hence, the impugned order deserves to be quashed and set aside. 9. The contentions of Shri Coutinho, learned Counsel appearing for the petitioner with regard to the merits of the proposed amendment which have otherwise been disputed by the learned Counsel appearing for the respondents are the issues which are kept open. Nevertheless, in the interest of justice, considering the facts of the case, the respondent no.1 is at liberty to file an appropriate application for amendment afresh after complying with the said provisions of law. In case such application is filed, the same shall be dealt with by the learned Judge after hearing the petitioner in accordance with law. :7: 10. In view of the above, I pass the following : O R D E R (i) The impugned order dated 9.2.2011 is quashed and set aside. (ii) The respondent no.1 is at liberty to file a fresh application for amendment and the same shall be dealt with by the learned Judge after hearing the petitioner in accordance with law. (iii) All the contentions of the parties on merits are left open. (iv) Rule in the above terms. (v) The petition stands disposed of accordingly with no order as to costs. F. M. REIS, J at*