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Judgment
Heard. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.
The present petition challenges order dated 03.12.2025, passed below Exhibit 42 by the 2nd Joint Civil Judge Junior Division, Gadchiroli, in Regular Civil Suit No.40 of 2022.
By way of said order, the application filed by the plaintiffs i.e. the petitioners herein, filed under Order VI Rule 17 for amendment of the plaint is rejected.
The petitioners who are the original plaintiffs filed a suit for specific performance and permanent injunction. After the framing of issues, the application at Exhibit 42 was moved. The proposed amendment pertained to certain subsequent events and was clarificatory in nature. The said application is rejected by the impugned order.
I have heard Ms. Dhanashree Wagulwar h/f. Mr. Madhur Deo, learned counsel for the petitioners, and Mr. Kabir Kalidas, learned counsel for the respondents.
Ms. Dhanashree Wagulwar, learned counsel for the petitioners would submit that the trial Court has erred in rejecting the application on a factually incorrect premise that the trial has commenced. She would rely on a judgment of this Court reported in 2012 SCC OnLine Bom. 1283 (Mahadeo Vs. Balaji and others) the Hon'ble Apex Court reported in (2009) 2 SCC 409 (Vidyabai and others vs. Padmalatha and another) in which the position is clarified that the trial would commence when the evidence is recorded. The earlier view of the Hon'ble Apex Court in Vidyabai and Ors. v. Padmalatha and Anr., reported in (2009) 2 SCC 409, is accordingly modified to mean that the trial would commence not when the issues are framed, but when the evidence would begin.
If the impugned order is perused on the backdrop of this admitted position of law, I hardly find that the said order takes into consideration this position of law. The order, therefore, cannot be countenanced. The only factual aspect; which is erroneous; has weighed with the trial Court in rejecting the application that there is no due diligence as contemplated under the proviso to Order VI Rule 17 of the CPC.
In my considered opinion, the proviso to Order VI Rule 17 of C.P.C., which circumscribes the power of the trial Court to adjudicate the amendment, would come into play only when the trial is commenced, i.e. when the evidence in the matter begins.
In that view of the matter, the impugned order cannot cannot be sustained.
The petition is therefore liable to be allowed. I, therefore, pass the following order :
O R D E R
The petition is allowed.
The impugned order dated 03.12.2025, passed below Exhibit-42, by the 2nd Joint Civil Judge Junior Division, Gadchiroli, in Regular Civil Suit No.40 of 2022 is quashed and set aside.
The application filed by the present petitioner at Exhibit 42 is allowed.
The petitioners are permitted to carry out the amendment in the plaint.
Needless to mention that the defendants/ respondents herein would be entitled to file and consequently amend the written statement to counter the amended pleading.
With these directions, the petition is disposed of.
Rule is made absolute in above terms. No costs.