MADHUKAR TRYAMBAKRAO PATIL Vs. DINKAR PURNIJI DUKARE

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. Petition is heard finally with the consent of learned counsel for the parties.

(2.) By this petition, the petitioner impugns the order passed by the Civil Judge, Junior Division, Chikhli on 21.1.2009 in R.C.S. No.124/2004 allowing the amendment application filed by the respondent no.l. The respondent no. 1 is the original defendant and the petitioner is the original plaintiff. A suit was filed by the plaintiff for permanent injunction and removal of encroachment. The respondent no.l filed his written statement on 11.7.2005. Thereafter, the matter was posted for evidence on 21.10.2005. The petitioner tendered his evidence on affidavit on 7.11.2005. The matter was posted for cross examination of the plaintiff on 20.11.2005. Thereafter, on 1.12.2008, the respondent no.l filed an application for permission to amend the written statement. The application was allowed by the Trial court solely on the ground that the counsel for the plaintiff was absent and the plaintiff had not filed his say to the amendment application. The order dated 21.1.2009 is impugned by the instant petition.

(3.) Shri.Saoji, the learned counsel for th petitioner submitted that the trial court committed a serious error in allowing the amendment application after the trial had commenced, without considering whether the amendment was necessary for deciding the lis between the parties and whether inspite of due diligence the respondent no. 1 could not have amended the written statement earlier or had raised the plea in the original written statement. The learned counsel for the petitioner submitted that the trial court did not consider the import of the proviso to Order 6, Rule 17 of the Code of Civil Procedure.