1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.380 OF 2010 ANANDRAO DAULA MOTE Petitioner V/S BARIKRAM MANIKRAO MOTE Respondent Smt. M.A. Kulkarni, Advocate for the petitioner. CORAM : S. B. DESHMUKH, J. DATE : 18TH JANUARY, 2010. PER COURT :- 1. Heard learned counsel Smt. M.A. Kulkarni, for the petitioner. Petitioner is plaintiff in RCS No.308/2003, filed in the Court of Civil Judge (J.D.), Bhoom, Dist. Osmanabad. Copy of plaint is on record (page 19). This suit seeks principal relief of declaration that petitioner/plaintiff is owner of the suit property i.e. land survey No.133/D admeasuring 0H 70 Aars. Thus, declaration of ownership and possession is one of the main reliefs sought in the suit. Another main relief claimed by the petitioner/plaintiff is rectification of the registered sale deed pertaining to suit property bearing No.451/1979. 2. After filing of this suit and receipt of the summons, defendant entered appearance and filed written statement. Issues were settled. Indisputably, parties led evidence. Matter was listed for final arguments. The 2 petitioner/plaintiff filed an application seeking amendment Exh.72 in trial court on 3rd November, 2009. It is annexure ‘C’ (page 29) of this writ petition. 3. With the assistance of counsel appearing for the petitioner, I have gone through this entire application minutely. The application reads that at the time of registration of the sale deed of the suit property, it was not read either by the petitioner/plaintiff or defendant, hence, it was noticed that there is no description of the suit property mentioned in the sale deed. On this ground amendment to the suit, as mentioned in this application, was sought. 4. Learned trial court sought the reply of the other side by the order passed on 3rd November, 2009. Reply filed by the respondent/defendant is on record (page 31) of the compilation. In this reply, defendant has stated that the amendment was sought after the evidence of the plaintiff and defendant is over, arguments have been heard and many days have been passed over. In cross examination, petitioner however has admitted that there is a recital that I have read the contents of the sale deed. According to defendant, if this amendment is allowed, entire nature of the suit would stand changed. The plaintiff is trying to take new plea and desires to lead evidence. The application was requested to be dismissed. 5. Learned trial court heard the parties. In paragraph No.6 of the order, learned trial court has referred to section 26 of the Specific Relief Act 3 and grounds available for seeking rectification of the document. In paragraph No.7 of the order, learned trial Judge quoted the provisions of Order VI Rule 17 of the Code of Civil Procedure. In paragraph No.8 of the order, learned trial Judge observed that there is no reason mentioned in the application seeking amendment as to why the application is filed at such belated stage. Learned trial Judge has gave more emphasize to the language of the proviso of Order 6 Rule 17 and has recorded a finding that this proviso has casted a duty on the part of the party to show his “due diligence” in respect of the amendment. Therein if the conduct of the present petitioner/plaintiff is seen, it has been opined by the learned trial court as not of “due diligence”. In paragraph No. 11 trial court had noticed the apprehension of the defendants pertaining to withdrawal of the admissions of the plaintiff. 6. Order VI Rule 17 of the Code of Civil Procedure, more specifically amended proviso, has been brought on Statute and made enforceable with effect from 1st July, 2002. This suit is filed on 19th of August, 2003 i.e clearly after the amended provisions of Order VI Rule 17. 7. Counsel appearing for the petitioner submits that if this court is not inclined to interfere, liberty to file fresh application under Order VI Rule 17 be granted. The object of the various amendment to the Code of Civil Procedure shows that it is an endeavor on the part of the Parliament to curb the pendency of the litigation and curtail down the indefinite life span of the 4 litigation in the courts. In the case on hand respondent/defendant has stated in his reply, filed in the trial court, that not the trial is commenced but the evidence of the plaintiff and defendant has been adduced and many days have been passed over, after completion of arguments of both sides. In my view, such liberty under section 151 as claimed by the petitioner cannot be permitted. No case has been made for exercise of inherent powers to defeat the statutory provisions which is made enforceable from 1st July, 2002. Order impugned in this writ petition, in my view is apple-pie order and does not require any interference. 8. Writ Petition stands dismissed however there shall not be any order as to costs. ( S. B. DESHMUKH, J. ) ..... aaa/380.10