1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.1599/2010 Kiran S/o Laxminarayanji Mantri Age 33 years, Occ-Agriculture & Business R/o Mantri Nagar Latur. .. PETITIONER [ORIG.PLAINTIFF] VERSUS 1] Kishor Suryakant Kulkarni Age 34 years, Occ-Agril 2] Balkrushna Bhimrao Kulkarni Age 50 years, Occ-Agriculture and Service. 3] Suryakant Bhimrao Kulkarni Age Major years, Occ-Agril 4] Chintamani Balasaheb Kulkarni Age : Major years, Occ-Agril All R/o Ekurga, Tq. & Dist Latur. .. Respondents [ORIG.DEFTS.] .... Shri R.P.Adgaonkar,Adv.for petitioner. Respondents 1 to 4 served. .... CORAM : A.A.SAYED,J. DATE : 16/11/2010. ORAL JUDGMENT : 2 1] Rule. Rule made returnable forthwith. Petition is heard finally. 2] By the order dated 2/11/2009 passed by Civil Judge, Junior Division, Latur, the application of the petitioner/original plaintiff at Exh.67 under Order VI Rule 17 of C.P.C. for seeking amendment in the plaint is rejected. It is this order which is subject matter of challenge in the present petition. 3] None appears for the respondents though served. The suit is filed by the petitioner/original plaintiff for perpetual injunction from causing obstruction and interference by the respondents/original defendants over the suit land. The case of the petitioner/original plaintiff in the aforesaid application at Exh.67 for amendment was that during the pendency of the suit, he has sold 8 Hectares and 80 R. land out of the suit land admeasuring 09 Hectares and 14 R., which fact was required to be brought on record in the plaint. In the said suit, the petitioner has filed his affidavit in lieu of examination in chief. However, this fact of alienation of substantial portion of suit land has not been mentioned in the said affidavit in lieu of examination in chief. Admittedly the aforesaid portion of the suit property has been sold prior to the filing of the affidavit in lieu of examination in chief of the petitioner. 4] Order VI Rule 17 deals with amendment of pleadings. The proviso to the same specifically states that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence the party could not have raised the 3 matter before commencement of trial. Filing of the affidavit in lieu of examination in chief would amount to commencement of trial as held by the Apex Court in the case of Vidyabai Versus Padmalatha AIR 2009 S.C. 1423. 5] Admittedly before the commencement of the trial, the petitioner has sold substantial portion of the suit property. He could have surely filed the application for amendment prior to the filing of his affidavit in lieu of examination in chief. He has chosen not to do so. Moreover, it is noticed that the respondents.orig.deft. have put up a counter claim by which they seek recovery of certain portion of the land in question which has been allegedly encroached upon by the present petitioner/original plaintiff. No explanation has been offered for the delay in filing the application for amendment by the petitioner/original plaintiff. 6] For the aforesaid reasons, I do not find any infirmity or illegality in the impugned order so as to warrant any interference. The Writ Petition is dismissed. Rule is discharged. No order as to costs. (A.A.SAYED,J.) umg/wp1599-10