Important Point: It cannot be said that the defendant can amend the written statement and raise a plea which his predecessor failed to raise till the trial commenced, unless it is shown that inspite of due diligence the deceased defendant or his legal representative could not bring on record the facts which are sought to be brought on record by the proposed amendment.

1. Heard.

2. RULE. Rule made returnable forthwith.

3. The plaintiff has filed this petition to assail the order passed by the trial Court by which the application (Exh.126) filed by the defendant Nos. 2, 2A to 2C1 under Order 6 Rule 17 of the Code of Civil Procedure seeking permission to amend the written statement is allowed.

4. The plaintiff has filed civil suit against the respondent No.1 i.e. Bharat Petroleum Corporation and the respondent No.2 M/s. S.D. Asoriya praying for decree for ejectment, possession and damages. The respondent No.2/ defendant No.2 is partnership firm and at the time of filing of the civil suit it was represented by Sanktaprasad D. Asoriya. The written statement on behalf of the respondent No.2 firm was filed in 2003. This written statement was verified and affirmed by Sanktaprasad Dwarkaprasad Asoriya. Subsequently, the plaint is amended and defendant Nos. 2A, 2B and 2C came to be impleaded in the capacity as partners of the defendant No.2 firm. In September, 2008 defendant Nos. 2A, 2B and 2C filed written statement. The defendant No.2C died on 10th January, 2011. After the death of defendant No.2C, defendant No.2(C1) is brought on record as per the order passed by the trial Court on 4th April, 2013. The defendant No.2(D) is brought on record as per the order passed by the trial Court on 4th April, 2013. After defendant No.2(C1) and 2(D) were brought on record, they filed pursis dated 21st August, 2013 (Exh.125) and adopted the written statement filed by defendant No.2(C). On 27th November, 2013 the defendant No.2, 2A, 2B and 2C filed application (Exh.126) seeking permission to amend the written statement. This application is allowed by the impugned order.

5. Shri J.J.Chandurkar, learned advocate for the petitioner/plaintiff has submitted that the trial Court has committed an error in allowing the application (Exh.126) and permitting the defendant No.2, 2A, 2B and 2C to amend the written statement and take a plea which was not raised earlier. According to the plaintiff, defendant No.2, 2A, 2B and 2C are impleaded, being partners of defendant No.2 firm and they cannot take a plea which was not raised in the written statement filed on behalf of the defendant No.2 firm.

It is submitted that the written statement on behalf of the defendant No.2 was filed in 2003 and the matter proceed and affidavit on behalf of the plaintiff in lieu of his evidence came to be filed on 29th March, 2010, that is the trial commence on 29th March, 2010 and the trial Court lost the jurisdiction to permit the amendment in view of the bar created by proviso below Rule 17 of Order 6 of the Code of Civil Procedure. The submission is that the defendant Nos. 2, 2A, 2B and 2C have not been able to show that there was no wilful or deliberate delay on their part in seeking the proposed amendment. It is prayed that the impugned order be set aside and the application filed by the defendants seeking permission to amend the written statement be dismissed.

6. Shri R.M. Bhangde, learned advocate for the defendant Nos.2, 2A to 2D has supported the impugned order. It is argued that the defendant No. 2(C1) is brought on record as legal representative of the defendant No.2C on 4th April, 2013 and he filed pursis dated 21st August, 2013 adopting the written statement filed by the defendant No.2C and this was done in exercise of his right conferred by Order 22 Rule 4(2) of the Code of Civil Procedure. It is argued that once the defendant No.2 (C1) got right of filing the written statement as per the above referred provision, there cannot be any impediment in his way for seeking amendment to the written statement which is done within three months of filing of the pursis dated 21st August, 2013. It is submitted that the affidavit in lieu of the evidence of plaintiff was filed on 29th March, 2010 and defendant No.2(C1) is impleaded on 4th April, 2013 and as per Order 22 Rule 4(2) of the Code of Civil Procedure, the defendant No.2(C1) was entitl