1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2650 OF 2009 Major Bhola Nath Tiwari (Retd) .. Petitioner Versus Rakesh Kumar .. Respondent Mr.Rajesh Kachare i/b. Pravin Kadam for petitioner Mr.A.M.Pungliya for respondent CORAM : S.C.DHARMADHIKARI, J. DATE : 23rd April 2009. P.C. . The original defendant is before this Court challenging an order passed by the trial court on the application for amendment to the plaint. 2. An application for amendment (Exh.95) was filed by the original plaintiff - respondent before this Court. He has in the application stated that the plaint needs to be amended 2 because after the institution of the suit, he has learnt that the defendant has behind his back, obtained original documents deposited by him with I.D.B.I. This he has done after redeeming the mortgage created by the plaintiff. He has given the description of the documents which have been procured by the respondent defendant from the bank and retained with himself. The suit is filed for declaration that the suit flat is duly conveyed to the plaintiff by the defendant under an Agreement dated 20th November 2003 which is duly registered and, therefore, permanent injunction should also be issued in favour of the plaintiff restraining the defendant from obstructing the plaintiffs’ possession in respect of the suit flat. 3. During the pendency of such a suit instant application for amendment has been made. The objection raised by the defendant was that this application is filed during the course of 3 trial. Plaintiff has stepped into witness box and was duly cross examined. After his evidence is closed that this application is moved and, therefore, Order VI Rule 17 proviso would come into play and in any event all the facts which are stated to be now known were within the knowledge of the plaintiff, when the suit was instituted. Therefore, the court below was in error in allowing the amendment application is the submission of Mr.Kachare whereas, the respondent’s Counsel supports the impugned order. 4. Having perused the order under challenge, in the light of the relevant statutory provisions so also the law laid down by the Hon’ble Supreme Court, I am of the view that the amendment, in the peculiar facts of this case could have been granted despite the trial having commenced. All the facts pertaining to redemption of the mortgage and retention of the original documents allegedly by the defendant, petitioner before me, 4 were not within the knowledge of the respondent- plaintiff and despite due diligence, he could not have placed them when the suit was filed. The amendment causes no prejudice and the defendant petitioner before me can rebut this case by filing additional W.S. so also by leading his own evidence. In these circumstances and when the Court below has compensated the petitioner by payment of costs, that this is not fit case for interference with the discretion exercised by the trial court. The discretion has been exercised in accordance with the settled principles and judiciously. For this reason petition fails and is dismissed. Ad-interim order stands vacated. Additional W.S. be filed by the petitioner within four weeks from the date of receipt of copy of this order. Trial Court to, thereafter, frame additional issue, if required. 5 (S.C.Dharmadhikari, J)