1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.4862 OF 2011. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.C.K.Shinde, advocate for the Petitioners. CORAM : S.V.GANGAPURWALA,J. Date : 07.07.2011. 1. Heard. 2. The petitioners are the original defendants. The present Respondent/plaintiff has filed the suit for perpetual injunction restraining the defendants/present petitioners from interfering in his right of way. After the issues were framed, the plaintiff filed an application for amendment thereby seeking relief of mandatory injunction on the ground that during the pendency of the suit, the defendants have erected a shed in the said way. The said application came to be allowed. Aggrieved thereby, the 2 defendants have filed the present Writ Petition. 3. Mr.C.K. Shinde, learned counsel for the petitioners submits that the amendment would change the nature of the suit itself. The shed of the defendants is in existence much prior to filing of the suit itself and it is not a subsequent event. The trial Court was in error in not considering the said fact. According to the learned counsel, if otherwise the said amendment application could not have been considered in view of proviso to Order VI Rule 17 of the C.P.C. as the said application was given after the issues were framed and the matter was adjourned for 2/3 dates for leading evidence. The learned counsel relies on the judgment of the Apex Court in a case of "Vidyabai and others Vs. Padmalatha and another" reported in 2009 (1) ALL MR 471. 4. It is a trite law that the merits of the amendment are not required to be considered at the time of deciding the amendment application. The plaintiff filed the amendment application has come with a case that during pendency of the suit 3 the defendants have erected the shed in the way i.e. on or about 7.6.2011. The same is a subsequent event. Whether really the defendants had erected the shed on the said date or the shed was in existence as on the date of filing of the suit would be held only after the evidence is led. At this stage, no finding can be given on the said aspect. 5. As the event claimed by the plaintiff was subsequent, the Court was justified in allowing the said application. Even otherwise the trial Court has observed that the factual matrix with regard to the date of construction can be considered after the evidence is led and even the petitioners would have the right to negate the said contention. 6. In view of the above, as the event claimed by the plaintiff is subsequent, the judgment of the Apex Court in a case of "Vidyabai and others Vs. Padmalatha and another" referred supra, relied by the learned counsel would be of no assistance to the petitioners. 7. The Writ Petition is dismissed. However, 4 there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.07.07.2011. asp/office/wp4862.11