1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.2187 OF 2010. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.S.B.Bhapkar, advocate for the petitioner. Mr.K.J.Suryawanshi, advocate for the Respondent Nos.2 and 3. CORAM : S.V.GANGAPURWALA,J. Date : 25.08.2011. 1. Heard. 2. The petitioner is the original plaintiff. He had filed a suit for declaration that he has a right of pre-emption and injunction. The plaintiff thereafter led his evidence. He examined himself and one witness. Thereafter, filed an application for amendment. By way of amendment the petitioner sought the relief of specific performance of contract and also possession. The trial Court allowed the amendment application to the extent of adding relief of possession but rejected the application to the extent of claiming 2 relief of specific performance. The defendants have assailed the said order in the present Writ Petition. 3. Mr.Bhapkar, learned counsel for the petitioner submits that the Court could not have rejected the amendment application only on the ground of delay. In case the Court was of the opinion that the relief claimed is barred by limitation, it could have kept the point of limitation open and allowed the amendment application. For the said purpose, the learned counsel relies on the judgment of the Apex Court in a case of "Pankaja and another Vs. Yellappa (D) by L.Rs.and others" reported in AIR 2004 Supreme Court 4102. The learned counsel further contends that the amendment application has to be liberally construed. Even in the plaint, the plaintiff has specifically pleaded about the agreement of sale and the denial on the part of defendants to perform the part of the contract but due to inadvertence, the said relief could not be claimed at the time of filing of the suit. 3 4. Mr.Suryawanshi, learned counsel for the defendants submits that the plaintiff has already examined himself and his one witness. Thereafter, has filed the application for amendment. As per proviso to Order 6 Rule 17 of the C.P.C., the petitioner has not shown due diligence. In absence of the same, the amendment application could not have been considered. The learned counsel further contends that on the face of it, the application for amendment regarding the relief of specific performance was barred by limitation, the Court has rightly considered this aspect. 5. With the assistance of the learned counsels, I have gone through the pleadings, the application for amendment and the order passed. In the plaint, the petitioner in para 13 contended that on 4.11.2006, the defendant has refused the performance and that was the cause of action for filing the suit. The application for amendment is filed on 24.11.2009. The limitation for filing a suit for specific performance is three (3) years. The application for amendment is filed after lapse 4 of three (3) years from accrual of cause of action. Moreover, there is no whisper about due diligence in the application itself regarding non- filing of the said application earlier. The trial Court has considered that the plaintiff has examined himself and also one witness. Thereafter, the present application is filed and no satisfactory reason is assigned. 6. Even if the judgment of the Apex Court in a case of "Pankaja and another Vs. Yellappa (D) by L.Rs. and others" referred supra is applied, still, the amendment application does not satisfy the ingredients of proviso to Order 6 Rule 17 of the C.P.C. as there is no whisper about due diligence. 7. In light of above, the order impugned does not suffer from any error of jurisdiction. As such the Writ Petition is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.25.08.2011. 5 asp/office/wp2187.10