2024:BHC-NAG:3096 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO.251 OF 2024 Sau. Anita Anant Kaidalwar, aged 59 Years, Occupation – Homemaker, Resident of Flat D-102, Aakar Nagar, Near Friends Clony, Katol Road, Nagpur – 440013. ....... PETITIONER (Original Plaintiff) ...V E R S U S…

Shri Suhas Manoharrao Umathe, aged 67, Occupation: Private, Resident of S-4, Second Floor, Park Plaza, Anand Nagar, Ramnagar, Near Senior Citizen Hall, Chandrapur.

2] Smt. Rita Anil Umathe, Aged about 50 years, Occupation Household, 3] Kum. Surmai Anil Umathe, Aged about 24, Occupation Private, Both 2 & 3 residents of A-10, Samarth Colony, Near Vivekananda Colony, Near Gajanan Maharaj Mandir, Amravati 444 606. ....... RESPONDENTS (Original Defendants)

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Mr. U. A. Gosavi, Advocate for Petitioner.

Mr. S. S. Dhengale, Advocate for Respondents.

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CORAM: BHARAT P. DESHPANDE, J.

DATE OF RESERVING THE JUDGMENT : 07.03.2024 DATE OF PRONOUNCING THE JUDGMENT : 13.03.2024 ORAL JUDGMENT:

Heard.

2. Rule. Rule is made returnable forthwith.

3. Heard with consent for final disposal.

4. Whether in absence of due diligence by the party, an amendment could be allowed after the trial commence, is the question which needs to be answered in the present proceedings.

5. The petitioner is the original plaintiff who filed a suit for partition, separate possession, declaration, cancellation of will and mandatory injunction against the respondent/defendant.

6. The said suit is registered as Special Civil Suit No.355/2021. Learned trial court after the pleadings were completed, framed issues on 23.12.2022 and then posted the matter for evidence. The petitioner/plaintiff filed an affidavit in evidence on 03.02.2023 vide Exhibit-31 and further examination in chief for the plaintiff was recorded. The matter was then fixed for cross-examination of the plaintiff, however, the defendants sought time. Subsequently on 20.03.2023 respondent No.2 filed an application for amendment of the written statement under Order VI Rule 17 of the Code of Civil Procedure (Exhibit-35). Petitioner/plaintiff objected to such amendment, however, the learned trial court by impugned order dated 20.06.2023 allowed the said application thereby permitting the defendants to amend the written statement.

7. The petitioner challenged the said order before this Court by filing Writ Petition No.4763/2023 on the ground that such order required to be quashed and set aside since there is no finding in connection with due diligence. Vide order dated 19.08.2023, learned Single Judge of this Court (Coram: Anil S. Kilor, J.) partly allowed the said writ petition, quashed and set aside order dated 20.06.2023 and remanded the matter to the learned Civil Court to decide the application afresh. While doing so, this Court observed that the impugned order dated 20.06.2023 nowhere discusses the aspect of due diligence as found in the proviso to Order VI Rule 17 of the C.P.C.

8. After remand, the learned trial court passed separate order below Exhibit-35 dated 18.12.2023 thereby allowing the said application for amendment but by recording specific findings in connection with due diligence, against the defendants.

9. Learned counsel for the petitioner would submit that once the learned trial court observed that defendants failed to file the application for amendment before the commencement of trial and there is no due diligence on the part of defendants for filing such application after the commencement of order, the application ought to have been rejected.

10. Learned counsel for the petitioner would submit that proviso to Order VI Rule 17 of the C.P.C. mandate that once the court observed that there is no due diligence, application needs to be rejected. He would further submit that the learned trial court categorically gave finding o