(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Letters Patent Appeal No. 62 of 2007 1. Shri Gopal Namdeo Aklade, Age : 45 years, Occupation : Agriculture. 2. Shri Subhash Namdeo Aklade, Age : 50 years, Occupation : Agriculture. Both residents of : At Post Deogaon, Taluka Sakri, District Dhule. .. Appellants. versus 1. Shri Anantrao Tanaji Patil (Ahirrao), deceased through L.Rs. : 1-A) Raosaheb Anantrao Ahirrao, Age : 50 years, Occupation : Whereabouts are not known. 1-B) Laxman Anantrao Ahirrao, Age : 41 years, Occupation : Agriculture. 1-C) Mirabai Garbad Patil, Age : 47 years, Occupation : Household. (2) 1-D) Saraswatibai Anantrao Ahirrao, Age : 73 years, Occupation : Household. Nos.1-B to 1-D residents of : At Post Deogaon, Taluka : Sakri, District : Dhule. 2. Shri Laxman Anantrao Patil, Age : 41 years, Occupation : Agriculture, Resident of : At Post Deogaon, Taluka : Sakri, District : Dhule. .. Respondents. .......................... Mr. Mukul Kulkarni, Advocate, for the appellants. Mr. S.P. Brahme, Advocate, for the respondents. .......................... CORAM : B.R. GAVAI & N.D. DESHPANDE, JJ. DATE : 24TH AUGUST 2009. COURT'S ORDER (Per B.R. Gavai, J.) : 1. By consent, the appeal is taken up for final hearing. 2. By way of present appeal, the appellants have challenged the order dated 2nd April 2007, passed by the learned Single Judge of this court, in Writ Petition No. 1930 of 2007, thereby setting aside the order (3) dated 15th February 2007, passed by the learned Civil Judge (Junior Division), Sakri, below Exhibit 115, in Regular Civil Suit No. 117/2002, vide which the application filed by the respondents (original plaintiffs), for amendment of the plaint, was rejected. 3. The respondents (original plaintiffs) had filed a suit for perpetual and mandatory injunction and demolition of the construction. After the evidence was over, an application came to be filed for amendment of the plaint for deleting certain words from the plaint. The application was rejected by the learned trial Judge on the ground that in view of proviso to Rule 17 of Order VI of the Code of Civil Procedure, 1908, the amendment at that stage could not be allowed. 4. Being aggrieved thereby, the plaintiffs filed Writ Petition, being Writ Petition No. 1930/2007 before this court. The learned Single Judge, by observing that the amendment does not change the nature of the suit, allowed the Writ Petition. The order passed by the learned trial Judge was set aside and the application for amendment made by the plaintiffs was allowed. 5. Being aggrieved thereby, the present appeal is preferred by the appellants (original defendants), which is admitted on 13th April 2007. 6. The legal position is now well settled. The Apex Court, in the case of Vidyabai and others Vs. Padmalatha and another ((2009) 2 SCC 409) has held that if the amendment is sought to be made in the plaint after commencement of the trial, unless the party satisfies that (4) inspite of exercise of due diligence, the matter which is sought to be placed on record, could not have been placed, the court does not have jurisdiction to entertain an application for amendment. The Apex Court has further held that unless aforesaid jurisdictional fact is established, it is not permissible for the court to allow an amendment after commencement of the trial. 7. Admittedly, in the present case, the plaintiffs have failed to establish that the amendment which is sought to be placed on record, could not have been placed prior to commencement of the trial, inspite of exercise of due diligence. 8. In that view of the matter, we are of the considered view that the taken by the learned Judge of the trial court was right and that the learned Single Judge of this court has erred in allowing the application for amendment. 9. The appeal is, therefore, allowed. The order dated 2nd April 2007, passed by the learned Single Judge of this court, in Writ Petition No. 1930 of 2007, is quashed and set aside. The order dated 15th February 2007, passed by the learned Civil Judge (Junior Division), Sakri, below Exhibit 115, in Regular Civil Suit No. 117/2002, thereby rejecting the application for amendment, is restored. ( N.D. DESHPANDE ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/lpa62