hcs 1 w204.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION WRIT PETITION NO.204 OF 2011 Pandharinath R.Choudhary .. Petitioner. Vs. Chandrabhaga Sonawane .. Respondent. Mr.M.J.Jamdar for the petitioner. Mr.S.S.Mardhikar i/b YKS Legal for the respondent. CORAM: B.R.GAVAI, J. 11th February, 2011. PC: 1. By way of present petition the petitioner has challenged the order dated 13th December, 2010 by which the application filed by the present petitioner for amendment of the plaint came to be rejected. 2. The petitioner has filed a suit for removal of encroachment against the defendants. In the said suit since as is mandatory requirement, a plaint map was not annexed. As such an application came to be filed for amendment of the plaint so as to bring on record the averments regarding the said plaint map and for bringing on record the said plaint map. The application is rejected. Hence the present petition. 3. Shri.Jamdar, learned counsel appearing on behalf of the petitioner submits that the learned trial Court has taken totally perverse approach in the hcs 2 w204.11.sxw matter. He submits that the learned trial Court has though observed that amendment is necessary for adjudicating dispute between the parties. But has still rejected the same. He, therefore, submitted that in the interest of justice it is necessary that the order be set aside and amendment be allowed. 4. Shri Mardikar, learned counsel appearing on behalf of the respondents on the contrary submitted that amendment that is sought to be incorporated is after commencement of the trial. The learned trial Judge has rightly rejected the application and no interference is warranted. 5. Admittedly, the issues are framed, affidavit in lieu of examination in chief is filed. By now it is well settled position of law that if the amendment is sought to be brought on record after commencement of the trial, which with exercise of due deligence could have been brought on record prior to commencement of the trial such an amendment cannot be allowed. Reliance is placed on the judgment of the apex court in Vidyabai and Others Vs. Padmalata and Anr. AIR 2009 S.C. 143. Not only this but the Apex Court has gone to the extent of saying that this goes to the very jurisdiction of the learned trial Court for considering application for amendment. The only ground stated in the application with respect to the exercise of due deligence is concerned, is that earlier lawyer though was given instructions has not filed plaint map on record and it is only when the new lawyer was engaged it was found necessary by the new lawyer that plaint map would be necessary and as such amendment was necessary. The due deligence required is of the litigant. Had the petitioner hcs 3 w204.11.sxw being deligent enough he could have very well brought on record the amendment which is sought to be brought on record after commencement of the trial. 6. The jurisdiction of this court under Article 227 can be exercised only in the event it is found that the findings of the learned trial Court are perverse. The learned trial Court has given cogent and sound reasons, based upon the law as laid down by the Apex Court. In that view of the matter no case is made out for interference. The petition is dismissed. (B.R.GAVAI, J.)