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Judgment
Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.
The present petition is filed under Section 227 of the Constitution of India challenges order passed below Exh.-160 in Special Civil Suit No.105/2012 whereby the trial Court i.e. 10th Joint Civil Judge, Senior Division, Akola has rejected the application filed by the plaintiff No.3 for amending the plaint.
I have heard Ms. Vaishnavi Mankar, learned counsel for the plaintiff No.3 (petitioner herein). As can be seen from the record the present suit is filed for specific performance of contract. According to the plaintiff No.3 the agreement in question in fact is not executable, as it is cancelled and this fact is not pleaded by the plaintiffs. As can be seen from the record the special civil suit is filed in the year 2012 and pends since then.
After going through the application for amendment there is noting pleaded about due diligence and about the reasons for which the proposed amendment could not be incorporated in the pleading earlier. The trial Court in its order and more particularly in para Nos. 5 and 6 thereof has recorded an elaborate finding regarding the said fact and stated that the application for
amendment is squarely hit by the proviso to Order 6 Rule 17 of the C.P.C. and has therefore proceeded to reject the application.
Ms. Vaishnavi, learned counsel has strenuously argued that there was enough material on record to show since the plaintiff No.3 has appointed an independent Advocate and thereafter the present application is made. It is her submission that no prejudice would have been caused if such proposed amendment is allowed.
I am hardly impressed by the contentions canvassed by the learned counsels for the parties engaging an independent Advocate by the plaintiff cannot ifso facto clothe the party to apply for amendment. If this exercise is done that would amount to circumvent the proviso to Order 6 Rule 17 of the C.P.C. The order not being perverse in nature do not call for any interference in writ jurisdiction.
The petition is accordingly rejected. Rule is discharged.