1 wp10838-101 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.10838/2010 Aarshi Revla Valve and Another .. PETITIONERS V/s Bhika Tembharya Valvi. .. RESPONDENT ...... Shri Amit S. Savale,Adv.for Petrs. .... CORAM : A.A.SAYED,J. DATE : 06/12/2010. ORAL ORDER : 1] The order dated 27/7/2010 passed by the Civil Judge, Junior Division, Dhadgaon, is subjected to challenge in this petition. By that order, the application of the respondent- orig. defendant for amendment to the plaint came to be allowed. 2] The learned counsel for the petitioners submit that the trial of the suit has already commenced and infact even the arguments are over and the trial Court allowed the application for amendment under Order VI Rule 17 of C.P.C. at this belated stage, which is not permissible under Order VI Rule 17 of C.P.C. He further submits that the plaintiff ought to have shown due diligence and the amendment, if any, ought to have been sought at an earlier stage i.e. before the commencement of trial. The learned counsel has relied upon paragraph 19 of the decision in the case of Vidyabai V/s Padmalata, 2009 (2) SCC 409 wherein the Apex Court has observed as under : 2 wp10838-102 19]It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court s jurisdiction in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint. 3] The amendment which is sought in the plaint is in respect of the change in the Gut number. In the plaint as filed, the Gut was mentioned as Gut No.272/4/2. The amendment which is sought is to correct the Gut number to make as Gut No.272/4/5. The change in the number appears to be a typographical error inasmuch as the petitioner/orig. defendant has himself admitted in his cross examination that the two huts possession of which are being sought to be recovered in the suit, are on Gut No.272/4/5. It is seen that even in the affidavit, Exh.14 the suit number which is mentioned by respondent/original plaintiff was Gut No. 272/4/5. 4] The trial Court has observed in para 9 and 10 as follows : 9] Considering the entire evidence before me and my above discussion I come to the conclusion that, nearly mistake in the mentioning Gut No. is not sufficient to deny the plaintiff from his legal right. Secondly, it is pertinent to note that 3 wp10838-103 the area and measuring 1 H 84 R and revenue Rs.00-60 Ps. is same regarding Gut No.272/4/2 and hence according to me there is no substance in the arguments advanced by defendant that he will prejudiced, if the amendment is allowed, regarding his written statement and defence. According to me even in the interest of justice if the amendment is allowed it will not cause any prejudice to the defendant as stated by me in supra paras. 10] It is pertinent to note here that, admittedly the plaintiff has filed his application at too much later stage i.e. after completion of entire arguments above sides, and therefore, in the interest of justice it is desirable that heavy cost is to be imposed on the plaintiff. Hence I give my finding in the negative on the point No.1 and pass the following order. 5] In a recent decision, the Apex Court in the case of Revajeetu Builders V/s Narayanswamy & Sons (2009) 10 SCC 84, while analysing the law on amendments of pleadings, observed in paragraphs 63,64 as follows : 63]On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment : [1] whether the amendment sought is imperative for proper and effective adjudication of the case ; [2] whether the application for amendment is bonafide or malafide; [3] the amendment should not cause such prejudice to the other side which cannot be compensated adequately 4 wp10838-104 in terms of money; [4] refusing amendment would in fact lead to injustice or lead to multiple litigation; [5] whether the proposes amendment constitutionally or fundamentally changes the nature and character of the case; and [6] as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive. [64] The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bonafide legitimate, honest and necessary amendments and should never permit malafide, worthless and/or dishonest amendments. 6] As indicated above, in the present case, the amendment which is sought appears to be a typographical error which seems to be accidental. The amendment is bonafide and if the same is allowed, no prejudice is likely to be caused to the petitioners/orig.defendants. On the other hand, if amendment is not allowed, the entire suit may become meaningless and the decree if obtained would be incapable of being executed because of the incorrect Gut number and it would lead to injustice to respondent and to multiple 5 wp10838-105 litigation. It is nobody s case that the huts in question are situated in the wrongly mentioned Gut No.274/4/2. In the facts of the present case, the words due diligence cannot in the proviso to Order VI Rule 17 of C.P.C. be extended to an error which seems to be an overlooked accidental typographical error and which if allowed to be retained would have the effect of defeating the suit, particularly when both the parties had proceeded on the basis that the subject matter of the suit relates to Gut no.272/4/5. The amendment does not change the nature or character of the suit and the same is necessary for effectual disposal of the suit. 7] In that view of the matter, I am not inclined to interfere with the impugned order. The petition is dismissed summarily. No order as to costs. (A.A.SAYED,J.) umg/wp10838-10