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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE, BENCH AT AURANGABAD

WRIT PETITION NO. 7336 OF 2009

Pandurang Shivappa Sontakke & another

....Petitioners.

Versus

Rama Bapu Lashkare & others

....Respondents.

Shri. V.D. Salunke h/f. Shri. S. P. Urgunde, Advocate for the petitioners.

Shri. R.B. Deshmukh, Advocate for the respondent No. 5.

CORAM :

R.M. BORDE, J.

DATE :

24th March, 2010

ORAL ORDER :

1.

Heard the respective counsel appearing for the parties.

2.

An application presented to the First Appellate Court, seeking

permission to amend the pleadings, tendered by the respondents/

original plaintiffs, has been turned down by the First Appellate Court in

view of the order passed on 4.9.2009 in Regular Civil Appeal No.

191/2007 and the said order passed by the First Appellate Court is the

subject matter of challenge in this petition.

3.

The petitioners/original plaintiffs instituted Regular Civil Suit No.

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245/2000 in the Court of Civil Judge, Junior Division, Tuljapur, claiming

relief of declaration and perpetual injunction. The suit came to be

dismissed of on 30.7.2007. The original plaintiffs being aggrieved by the

dismissal of suit by the Trial Court presented an appeal being Regular

Civil Appeal No. 191/2007 to the District Judge, Osmanabad. The appeal

is stated to be pending and listed for final arguments. The plaintiffs, at

the stage of hearing of the appeal, have presented an application,

seeking amendment to the plaint. The plaintiffs want to plead in respect

of execution of agreement of sale by defendant No. 1 with the consent of

defendant Nos. 2 and 3. The plaintiffs contend by virtue of proposed

amendment that the defendant Nos. 2 to 4 were having knowledge in

respect of transaction of sale effected by defendant No. 1 and as such,

they cannot dispute the entitlement of the plaintiffs in respect of the suit

property in their capacity as the owners. The application seeking

amendment to the plaint has been turned down by the First Appellate

Court on the ground that the same is presented at belated stage and

after the decision of the suit by the Trial Court.

4.

I have perused the application as well as the order passed by the

First Appellate Court. It is contended by the counsel appearing for the

petitioners that merely the application is tendered late, cannot be a

ground for rejecting the same. It is further contended that no prejudice

would be caused to the other side as the document has been referred by

the plaintiffs in evidence and the same has already been exhibited. The

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learned counsel appearing for the respondent, per contra, has

contended that objection is raised by the defendants for considering the

document without there being any pleading in that behalf. Such an

objection was raised before the Trial Court and the same is also raised

before the First Appellate Court. The presentation of the application is

attempt to fill up the lacuna occurring in the case of the plaintiffs.

5.

The pleadings can be amended in view of Order 6, Rule 17 of

C.P.C. It is to be noted that the plaintiffs proceeded with the trial and did

not find it necessary to request the Court for permitting him to amend

the pleadings at the stage when the trial was proceeded before the Court

of first instance. There is also no reason exhibited as to why such an

attempt was not made when the trial was proceeded. It also cannot be

said that the plaintiffs were not posted with the knowledge of existence

of the document. They were aware in respect of the document and

therefore, it cannot be inferred that the plaintiffs have acted with due

diligence in tendering the application for amendment. The application

came to be tendered only at an appellate stage and that too when the

appeal is posted for final hearing. There are no circumstances placed on

record in respect of exercise of due diligence by the plaintiffs