1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7604 OF 2009 Vijay Simratmal Bora, Age 59 years, Occu. Business and Agriculture, R/o M.G. Road, Ahmednagar. ....Petitioner. Versus 1] Mukesh Digambar Deolalikar, Age 29 years, Occu. Business 2] Mrs. Gauri Mukesh Deolalikar, Age 27 years, Occu. Household, Both R/o 101, Clasik Apartment, Kishta Lane, Ahmednagar. 3] Shankarrao Siodhappa Hirnwale, Age yrs, Occu. Business, R/o Maliwada, Ahmednagar. 4] The Manager, State Bank of India, Savedi Branch, Savedi, Ahmednagar. 5] The Chairman, Anandnagar Sahakari Gruha Nirman Sanstha Ltd., Behind Hotel Saintara, Gulmohar Road, Ahmednagar. 6] Sou. Hemlata Vishnupant Khaire, Age yrs, Occu. Household, R/o Station road, Khaire Colony, Opp. Railway Station, Ahmednagar. ...Respondents. Shri. L.B. Palod, Advocate for the Petitioner 2 Shri. N.B. Narwade , Advocate for the respondent Nos. 1,2 & 6. Shri S.D. Tambat, Advocate for respondent No. 4. CORAM : R.K. DESHPANDE, J. DATE : 04th August, 2010. ORAL JUDGMENT : 1. This Writ Petition challenges, order dated 07th October, 2009 passed by the learned Joint Civil Judge Senior Division, Ahmednagar rejecting application below Exh. 43 for amendment of plaint filed by the petitioner / plaintiff in Special Civil Suit No. 128 of 2007. 2. Notice for final disposal was issued on 18th November, 2009, in response to the same Shri N.B. Nawarde, learned counsel appears for respondent No. 1, and 6, Shri S.D. Tambat, learned counsel appears for respondent No. 4. Learned counsel for the parties submit that the petition can be heard at the admission stage. Hence, Rule made returnable forthwith. Petition heard finally by consent of parties. 3. In a suit of specific performance of contract, filed by the petitioner /plaintiff, issues were framed on 21th April, 2009 at Exh. 41 by the Trial Court, and the matter was fixed for evidence on 15th September, 2009. The petitioner/plaintiff moved an application for amendment of plaint on 15th September, 2009, challenging the sale-deed dated 17th May, 2006 executed by the defendant Nos. 1 and 2 in favour of defendant No. 6. This application has been rejected by the Trial Court, on the ground 3 that it is highly belated and that the trial has commenced, as the matter fixed for evidence on 15th September, 2009. 4. The learned counsel appearing for the petitioner relying upon the Judgment in the case of “ Vidyabai and others V/s. Padmalatha and another., reported in 299(4) Mh.L.J. 30” has urged that filing of an affidavit in lieu of examination in chief of the witness, would amount to commencement of proceedings and the date of which issues are framed, is the date of first hearing. He has urged the Trial Court was wrong in holding that the trial has commenced, and therefore, application cannot be allowed in terms of proviso to order 6 Rule 17 of Civil Produced Code. He further submits that when the defendant No. 6 has filed written statement on 6th October, 2008, the petitioner / plaintiff came to know about the details of sale and hence has sought amendment by way of application Exh. 43. 5. Shri N.B. Narwade, learned counsel appearing for respondent Nos. 1,2 & 6 has however urged that the Trial Court right in rejecting the application for amendment and its merely prolong the litigation the said application below Exh. 43 has been filed. He further submits that the amendment sought to be introduced, changes the nature of suit and the petitioner/plaintiff has to file a separate suit for declaration that the sale-deed dated 17th May, 2006 is null and void and not binding on the petitioner/ plaintiff. He also further submits that 4 such a relief cannot be introduced in a suit filed for specific performance of contract against the respondent Nos. 1 and 2. 6. The Apex Court has held in the Judgment relied upon by the learned counsel for the petitioner (cited supra) that filing of an affidavit in lieu of cross-examination in chief of the witness, would amount to commencement of proceeding. It has been further held that the date on which issues are framed is the date of first hearing. In this context, undisputedly the affidavit has not been filed by way of evidence, in this case. The matter was fixed for evidence on 15th September, 2009. Hence, it cannot be said that there was commencement of proceeding. The learned Judge of the Trial Court wrong in holding that amendment was not within the ambit of proviso to Order 6, Rule 17 of the Civil Procedure Code. Similarly, there was no question for moving an application for amendment earlier, as the written statement was filed by the respondent No. 6 on 10th June, 2008 and on the basis of written statement, the petitioner/petitioner came to know the details of the same which sought to introduce by way of amendment. The application for amendment therefore, could not have been rejected on that count also. 7. The contention of the learned counsel for the respondent that the petitioner /plaintiff has to file separate suit for declaration that the registered sale-deed dated 17th May, 2006 is null and void and not 5 binding upon the petitioner / plaintiff, also cannot be accepted, for the reason that the suit property is the same property which is covered by sale-deed dated 17th May, 2006. Since it was a sale effected prior to the filing of suit, it was necessary for the petitioner /plaintiff, when he came to know that such a sale was effected, to challenge the same by way of amendment in the suit for specific performance of contract. The sale- deed was executed in favour of respondent No. 6 and he is joined as party defendant. Hence, to have a complete and effective adjudication over the dispute in the suit, the amendment was necessary. 8. In the result, the instant writ petition is succeeds. The order dated 07th October, 2010 passed by the learned Joint Civil Judge Senior Division, Ahmednagar Exh. 43 in Special Suit No. 128 of 2007 is hereby quashed and set aside. The application below Exh. 43 filed by the plaintiff /petitioner is allowed. The plaintiff/ petitioner to carry out necessary amendments within a period of two weeks from the date of receipt of writ of this Court by the Trial Court. The defendants are at liberty to carry out consequential amendments. Rule made absolute in above terms. [ R.K. DESHPANDE, J. ] SDM*7604.09WP