(1) WP. 1801.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1801 OF 2010 Sk. Osman S/o Sk. Sandu and anr. .. Petitioners VERSUS Naser Khan S/o Gulab Khan .. Respondents Mr. P.F. Patni, Advocate for the Petitioners ... CORAM : V.R. KINGAONKAR, J. DATED : 1ST JULY, 2010 ORAL ORDER:- 1] Heard learned counsel. The petitioners are original defendants against whom suit for specific performance of the contract of sale and injunction was filed. In their written statement, they asserted that as on date of filing of the suit they were unconcerned with the suit property for the reason that on 21.11.2007 they sold away the suit property to one Jitendra Digambar Puranik and handed over possession thereof. They contended that the suit was liable to be dismissed because there was no cause of action available to the plaintiff and the suit was not properly valued for the purpose of payment of Court fees and jurisdiction. The respondents filed application (Exh.42) for amendment of the plaint. It (2) WP. 1801.2010 was contended that the sale transaction between the defendants and the subsequent purchaser who are named in paragraph 1(A) also are required to be challenged. The respondent therefore sought amendment of the plaint. The respondent was examined by filing affidavit i.e. his affidavit was filed. Before he was subjected to cross-examination the application was moved for amendment. The trial Court allowed the amendment application and rejected the request of the petitioner but dismissed the suit under Order 7 Rule 11 of the Code of Civil Procedure. Relying upon the observations in “Vidyabai and others Vs. Padmalatha and anr. AIR 2009 S.C. 1433”, learned counsel would submit that after commencement of the trial the party cannot have any right to seek amendment. The Apex Court held that it is the primary duty of the Court to decide as to whether such amendment is necessary to decide the real dispute between the parties. Only if such condition is fulfilled, the amendment is to be allowed. The Apex Court further observed that “Proviso appended to Order 6 Rule 17 of the Code of Civil Procedure restricts the power of the Court. 2] It is true that the trial had commenced. Still, however, it is pertinent to note that in the written statement the petitioners only named one of the person to whom the sale deed was executed. They allege that the sale was effected in favour of third party by name Jitendra Digambar Puranik. The (3) WP. 1801.2010 amendment application, however, shows that the information received by the plaintiff indicated that on 22.5.2008, the third party by name Jitendra transferred the suit property by virtue of sale deed no.2277 of 2008 and interest of 8 other persons have been created. That was the intervening development which occurred after the commencement of the trial. It is more probable that the plaintiff was not knowing the subsequent transaction. The contention of the plaintiff is that the property was being sold in collusion with each other. Considering the intervening developments, the delay caused in filing of the application is duly explained. 3] In "Pradeep V. Heero" (2004) 13 S.C.C. 432 amendment of written statement was allowed even after commencement of the trial. So also in "Pratap V. Venkat Reddy" 2004 All H.C. 573 (AP) it is held that inclusion of the names of subsequent purchasers should not be refused despite applicability of the proviso under Order 6 Rule 17 of the Code of Civil Procedure. 4] Having regard to the justification and the intervening developments, the impugned order does not suffer from arbitrariness. Hence, Petition dismissed. Sd/- [V.R. KINGAONKAR, J.] arp