1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No. 4701/2007 Satish s/o Pandurangji Bhaimare vs. Shankar s/o Ghulbaji Barbatkar and others. ------------------------------------------------------------------------------------------------------------------ Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. ----------------------------------------------------------------------------------------------------------------- CORAM : A.P.LAVANDE, J DATE : 19.6.2008 Heard Mr. Dhandekar, learned counsel for the petitioner. None present on behalf of the respondents though served. 2. By this petition, the petitioner takes exception to the order dated 24.8.2007 passed by the Joint Civil Judge, Sr.Dn.,Wardha in Special Civil Suit No. 31/07 dismissing the application for amendment filed by the present petitioner. 3. The petitioner is the original plaintiff in the above suit filed against the respondents/defendants for recovery of earnest amount of Rs. 1 lac. After the defendants were served in the said suit the defendants filed written statement on 6.7.2007 and on the same day the trial court framed issues. On 3.8.2007 the application seeking amendment of the plaint was filed which has been dismissed by the trial court on two grounds viz. i) that the amendment is not necessary for determining the real controversy between the parties and ii) that the amendment was not justified under Rule 17 of Order VI of the Code of Civil Procedure since the hearing of the case had already begun. 2` 4. Mr. Dhandekar, learned counsel for the petitioner submitted that the trial court has not given any reason as to why the amendment is not necessary for determining the real controversy between the parties. He also submitted that the plaintiff could not have raised the matter except by way of amendment since the amendment was necessitated on account of the written statement filed by the defendants. Mr. Dhandekar, learned counsel for the petitioner relied upon the Judgment in Rajesh Kumar Aggarwal and others vs. K.K.Modi and others ( AIR 2006 Supreme Court, 1647). 5. Having considered the submissions made by the learned counsel for the petitioner and having perused the record I find that the proposed amendment is not necessary for determining the real controversy between the parties. The suit filed by the plaintiff is simplicitor for recovery of the earnest money. By the proposed amendment the petitioner wants to bring on record that the parties to the earnest note had agreed to show consideration of Rs. 3 lacs in the sale-deed with respect to the suit house and he has purchased the stamps of Rs. 18000/-. The plaintiff further wants to add that at the time of execution of earnest note the defendants 1 and 2 and deceased Shantaram had told him that they would bring their brother Satish at the time of execution of the sale deed by 30.4.2006. The petitioner also wanted to add that after the execution of the earnest note the plaintiff had issued public notice in “Daily Lokmat” on 28.1.2006 declaring that they intended to purchase the suit property. 3` 6. Having regard to the nature of the proposed amendment I am of the considered opinion that the findings given by the trial court that the proposed amendment is not necessary for determining the real controversy between the parties cannot be faulted. It is pertinent to note that the suit is simplicitor for recovery of the earnest money and not for specific performance of the agreement. Therefore, the proposed amendment cannot be said to be necessary for determining the real controversy between the parties. The ratio laid down by the apex court in Rajeshkumar's case (supra) relied upon by Mr. Dhandekar is not applicable in the present case having regard to the factual situation in the present case. Therefore, the impugned order passed by the trial court cannot be faulted. 7. For the reasons aforesaid I find no merit in the present petition. The petition is rejected. Judge patle 4`