Judicial discretion to amend pleadings is constrained by the need for due diligence; failure to exhibit such diligence invalidates post-trial amendment requests.

JUDGMENT :

N.J. JAMADAR, J.

1. Rule.

2. Rule made returnable forthwith and, with the consent of the counsel for the parties, heard finally.

3. The petitioner/plaintiff no. 1 takes exception to an order dated 5^th November 2024 passed by the learned Civil Judge, Pune whereby an application preferred by the respondent no. 2/defendant no. 2 seeking amendment in the written statement came to be allowed.

4. The background facts can be stated in brief as under:

4.1 The petitioner and respondent nos. 8 and 9, have instituted the suit, being Special Civil Suit No. 1228 of 2017, for declaration that the plaintiffs have 3/5th share in the suit properties and defendant nos. 1 and 2 together have 1/5th share and defendant nos. 3 to 5 together have 1/5th share in the suit properties, partition, rendition of accounts and the consequential reliefs.

4.2 The plaintiffs are the daughters of Shridhar Shetty. Their sister Shakuntala was married to defendant no. 1. Shankuntala passed away on 24^th February 2006. Defendant no. 2 is the adopted daughter of defendant no. 1 and late Shakuntala. The plaintiffs had a brother Dayanand, who passed away on 7^th July 2012. The defendant no. 3 is the widow, and defendant nos. 4 and 5 are the sons of Dayanand.

4.3 The plaintiffs assert defendant no. 6 is conducting the business of hotel Roopali (suit property 1B) illegally in collusion with defendant no. 1. Defendant no. 7 is the son of plaintiff no. 1. Defendant no. 7 has been given the rights of administering hotel Roopali by late Appi Shetty, the wife of Shridhar.

4.4 The plaintiffs assert, Shridhar Babu Shetty, who passed away intestate on 18^th February 1961, was the original holder of the suit properties. The defendant no. 1 has usurped the suit properties by creating false and forged documents and illegally claimed to be the absolute owner of the suit properties and thereby deprived the plaintiffs, who are legal heirs of late Shridhar Babu Shetty and late Smt. Appi Shetty, the wife of Shridhar Shetty, of their share in the suit properties. Hence, the suit for declaration, partition and rendition of accounts.

4.5 The defendant nos. 1 and 2 contested the suit by filing written statement on 6^th March 2018. Issues were settled. The plaintiffs filed an affidavit in lieu of examination- in-chief. A further affidavit in lieu of examination-in-chief came to be filed on 6^th April 2022.

4.6 When the matter was posted for cross-examination, the defendant no. 2 filed an application under the provisions of Order VI Rule 17 of the Code of Civil Procedure, 1908 (‘the Code’) seeking amendment in the written statement filed on behalf of defendant nos 1 and 2. It was, inter alia, contended that after filing of the written statement the plaintiffs had filed application for temporary injunction, appointment of Court Receiver and recast of issues. Upon perusal of the pleadings and record, it was realised that amendment in the written statement was necessary to give better particulars, additional information, explanations and raise additional defences and contentions in the light of the averments in the plaint. It was, therefore, necessary to amend the written statement.

5. The application was resisted by the plaintiffs.

6. By the impugned order, the learned Civil Judge was persuaded to allow the application observing, inter alia, that the proposed amendment would not change the nature of defence of the defendant no. 2. The facts sought to be introduced by way of amendment in the written statement were explanatory in nature. Thus, to decide all the questi