1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1151OF 2009 Sahebrao s/o Baburao Gayake, age 62 yrs, Occ. Agri, r/o Nimbhari, Tq. Newasa, Dist. Ahmednagar. Petitioner. V E R S U S 1. Smt. Janabai @ Babaibai Vitthal Gayake, age 57yrs, occ. Agriculture, r/o Bimbhari, Tq. Rahuri, Dist. Ahmednagar, at present Sillegaon, Tq. Rahuri, Dist. Ahmednagar. 2. Smt. Ashabai @ Dropadabai Dattu Talape, age 29 yrs, Occ. Household, r/o Dhangarwadi, Tq. Newasa, Dist. Ahmednagar. 3- Smt. Shrdabai Kacharu Tikkal, age 61 yrs, occ. Household, r/o Sarode Lane, Rahuri, Tq. Rahuri, Dist. Ahmednagar. 4- Smt. Bhagubai Ganpat Gayake, age major, occ. Household, r/o Baragaonnandur, Tq. Rahuri, Dist. Ahmednagar. 5- Smt. Vithabai Chandrabhan Sudake, age major, occ. Household, R/o Mandalik Akhada, Bargaon, Nandur, Tq. Rahuri, Dist. Ahmednagar. 6- Smt. Shantabai Uttam Shinde, age 57 yrs, occ. Household, r/o Sillegaon, Post Aradgaon, Tq. Rahuri, Dist. Ahmednagar. RESPONDENTS. 2 Shri V.D. Sapkal, Advocate for the petitioner. Shri P.S. Pawar, Advocate for R-1 and 2 Shri V. B. Jagtap, Advocate for Resp. 3,4,5 and 6. CORAM : B.R. GAVAI, J : DATE : 2nd JULY, 2009 PER COURT :- 1. Rule. Rule made returnable forthwith. Heard by consent. 2- By way of present petition, the petitioner challenges the order dated 12.01.2009 vide which the respondent plaintiff is permitted to amend the plaint. 3- The suit has been filed by the respondent/plaintiff for partition. The suit is filed on 09.11.2005. On 20.04.2006 the written statement came to be filed with specific contention therein that house property No.89 was not included. After that issues came to be framed on 01.03.2007. The plaintiffs filed their affidavit in lieu of examination in chief on 18.06.2007. The cross examination of plaintiff were also over on 17.07.2008. There after an application came to be filed for amendment of the plaint on 11.09.2008 so as to include the aforesaid house property No.89 in the claim of the plaint. Said application is allowed. Hence the present petition. 4- Shri Sapkal, the learned counsel appearing on behalf of the petitioner submits that in view of the provisions of Order 6 Rule 17 amendment shall not at all permissible in law. He relies on the 3 Judgment in the case of Vidyabai and ors vs. Padmalatha and another reported in 2009 (1) ALL MR 471. 5- Shri Pawar, the learned counsel appearing on behalf of the respondents submits that the learned trial court has allowed the amendment application taking into consideration the principles of natural justice and in order to ensure complete adjudication of dispute between the parties. He submits that the suit is for partition and for complete adjudication of the matter, it was necessary that all the properties are put on record. He therefore submits that no interference is warranted. 6- After amendment to Civil Procedure Code, in 2002, order VI Rule 17 position is very clear. As held by the Apex Court in case of Vidyabai, if an amendment seeks to bring on record, a matter after commencement of trial, it has to satisfy a condition that the said matter could not have been brought on record inspite of exercise due diligence. It has been held that aforesaid is a condition precedent for exercising the jurisdiction to allow the amendment after the commencement of trial. No doubt, courts have to be liberal in grant of amendment. However, after commencement of trial, unless aforesaid condition is satisfied, it is not open to entertain an application for amendment. In the present case, not only the issues are framed, but the evidence of the plaintiff is also over. Not only 4 this but on 28.04.2006 itself the petitioner/defendants had put the plaintiff on notice that property bearing no.89 was not mentioned in the plaint, by making an averment in that respect in written statement. The plaintiffs/respondents did not take any steps for carrying out the amendment for a period of two years. Had the plaintiff exercised due diligence at least after noticing the written statement, they could have brought the matter on record which is now permitted to be brought on record after commencement of trial much prior to commencement of trial. As already held, by the Apex Court, the learned trial court had no jurisdiction to entertain such an application. Leave aside, there being an averment regarding what is due diligence exercised by the plaintiffs, there is not even a whisper regarding the same. The learned trial court has also not taken into consideration that aspect of the matter. The learned trial Court has grossly erred in allowing the application. Rule is therefore, made absolute in terms of prayer clause ‘B’. ( B. R. GAVAI ) JUDGE ..... aaa/wp1151.09