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In the High Court of Bombay at Aurangabad
Writ Petition No.7544 of 2008
THE HONOURABLE MR. JUSTICE S.S. SHINDE
Anil s/o Vishwanath Jadhav
Versus
Pankaj s/o Indrajeet Bassi
Decided on : 16-09-2009
In the instant case, it is an admitted position that the issues are framed long back in the year 2003. The examination in chief of the plaintiff is over. Even cross-examination is also over and at belated stage, the application is filed on behalf of the petitioner for amendment in the written statement. The trial Court has observed in para 2 of the impugned order that the suit is part heard. Most of the witnesses of the plaintiff are examined by him and application for amendment of written statement is filed by the defendant, at the stage, when witnesses of the plaintiff are examined. It is further observed by the trial Court that the facts, which defendant are proposed to amend were within the knowledge of the defendant when written statement was filed at Exh. 14.
Therefore, viewed from any angle, not only that from the view point that the application for amendment is filed at belated stage, on other grounds also that the petitioner had knowledge of the contents of the proposed amendment at the time of filing of written statement and he could have brought that matter in written statement itself. That apart, the Counsel for the respondent is perfectly justified in contending that the amendment will cause prejudice to the interest of the original plaintiff. Therefore, it Court’s view, the C.J.S.D. Shrigonda has taken possible view and no case is made out to interfere in the impugned order. Writ petition is dismissed.
1. Rule. Rule returnable forthwith. The petition is taken up for final hearing immediately.
2. This petition is filed challenging the impugned order dated 25.11.2008 passed by the learned C.J.S.D. Shrigonda, below Exh.26 in R.C.S. No. 296 of 2001, thereby rejecting the application filed by the petitioner for amendment of written statement.
3. It is the case of the petitioner that on 31.10.2001, the respondent herein, who is original plaintiff instituted R.C.S. No. 296 of 2001 for mandatory injunction that the construction of the respondent in the suit property i.e. Gat No. 26/01 (old Gat No. 26) be demolished and the possession of the open plot be delivered to the petitioner.
On 13.9.2002, the petitioner filed written statement below Exh. 14 denying the contentions raised by the respondent contending that the petitioner owns and possesses 32 Are land in Gat No.25 towards the south east corner. It is also contended that the petitioner carries on business of hotel in the said land since last ten years. It is further contended that the petitioner has never raised any construction over the suit property and has prayed for dismissal of the suit.
On 10.10.2008, the present petitioner preferred application below Exh.26 for amendment of written statement as per the provision of order VI Rule 17 of C.P.C. contending that the proposed amendment is necessary for determining the real question in controversy between the parties and which does not change the nature of the pleading. On 10.10.2002, the respondent herein filed say to the application below Exh.26, contending that the trail of the suit has already commenced and in view of the amended provisions of C.P.C. amendment cannot be sought and prayed for dismissal of the application.
On 25.11.2008, the learned C.J.S.D. Shrigonda, has rejected the application below Exh.26 for amendment of the written statement. Hence, this writ petition.
4. Learned counsel appearing for the petitioner submitted that the amendment, which the petitioner wish to bring to the written statement is formal in nature which will not change the nature of the suit. It is further submitted that the amendment is necessary for the purpose of determining the real question of controversy as the petitioner has sought for amendment, which was in consonance to his earlier pleading in the written statement. It is further submitted that the proposed amendment does not change the nature of the suit and amendment can be carried out at any stage of the proceeding. Learned counsel further submitted that the amended provisions of Order VI Rule 17 proviso is not applicable in the present case, since the suit is filed prior to amended provisions. Learned counsel further submitted that the proviso to Rule 17 of Order VI of C.P.C. is not applicable in the facts of this case since the suit was filed prior to amendment suffered to Order Vi Rule 17 of C.P.C. Learned counsel further submitted that even after commencement of trail, the amendment can be allowed. Learned counsel further invited my attention to the reported judgment of the Apex Court in the case of Baldev Singh and Ors. Vs Manohar Singh and Anr. etc. reported in 2006 (5) All M.R. (S.C.) 107 and submitted that the amendment to plaint and amendment to written statement are not necessarily governed by exactly the same principle. Learned counsel relying on the aforesaid pronouncement further submitted that in case of amendment to pleading, wide powers and unfettered discretion is conferred on courts to allow amendment in order to expeditious disposal of the suit. Learned counsel, therefore, prayed that the impugned order is not sustainable and the same may be quashed and set aside and the present petitioner may be allowed to amend the written statement.
Learned counsel for the petitioner has invited my attention to the reported judgment of this Court in the case of Badrinarayan Bansilal Somani Vs. Vinodkumar K. Shan, reported in 2003 (3) Bom C.R. 231 and submitted th
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