1 wp 9682-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9682 OF 2010 Suresh Prataprao Shinde ..Petitioner vs. Kundalik tukaram Jadhav ..Respondent Mr.Vaibhav Patankar for the Petitioner. CORAM : B.R. GAVAI, J DATED : FEBRUARY 4, 2011. P.C. : 1 By way of present petition, the petitioner challenges order dated 28th September, 2010, vide which the application filed by the respondent- plaintiff for amendment of the plaint has been partly allowed. 2 The respondent-plaintiff has filed Special Civil Suit No.720/1999 for declaration and perpetual injunction. The suit by the respondent- 2 wp 9682-2010.sxw plaintiff is resisted by the petitioner and the other respondents. During the pendency of the suit, an application came to be filed for amendment of the plaint thereby seeking incorporation of an averment to the effect that the plaintiff's possession was being obstructed by the defendant. The said application is partly allowed. Hence, the present petition. 3 Shri Patankar, learned Counsel for the petitioner submits that the learned trial court has grossly erred in allowing the amendment at the belated stage. He submits that the suit is of the year 1999. An application for amendment is filed after 10 years and therefore, it ought not to have been allowed. He submits that the respondent- plaintiff is not in the possession at all and it is the petitioner who is in possession of the suit property. He further submits that from the perusal of the order, it would be seen that the learned trial court has made up his mind that the 3 wp 9682-2010.sxw plaintiff is in possession. He, therefore, submits that the petition deserves to be allowed. The learned Counsel also relied on the judgment of the learned Single Judge of this Court in the case of Anil s/o. Vishwanath Jadhav vs. Pankaj s/o. Indrajeet Bassi, reported in 2010(1) ALL MR 394. 4 By now, it is a settled principle of law that the Courts are required to take a liberal view in the matter of grant of amendment and the only rider in view of proviso to Order 6 Rule 17 of the CPC is that, when an amendment is sought to bring on record the matter after the commencement of the trial, which with exercise of due diligence could have been brought on record prior to commencement of trial, such amendment should normally not be allowed. The amendment to the CPC is brought into effect from 1st July, 2002. The present suit, admittedly, is filed prior to that i.e. in the year 1992, as such, it could not be governed by the amended provisions of the 4 wp 9682-2010.sxw CPC. In any case, the amendment pertains to subsequent development and as such, it would not be hit by the amended provisions of the CPC. 5 Insofar as the contention of the learned Counsel for the petitioner that the learned trial court has given a finding that the plaintiff is in possession is concerned, it is a settled law that at the stage of consideration of an application for amendment, the merits of the matter cannot be gone into. The Court was, therefore, only to consider as to whether the amendment should be granted or not. 6 Even after the amendment is granted to the plaint, the petitioner would be at liberty to file additional written statement, as per the liberty granted by the learned trial court. The petitioner can very well rebut the case of the plaintiff. The learned trial court would be bound to consider the evidence led on behalf of the parties and decide 5 wp 9682-2010.sxw the matter on merits. 7 In that view of the matter, no case is made out for interference. Insofar as the judgment of this Court in the case of Anil s/o. Vishwanath Jadhav (supra) is concerned, in the said case, an application for amendment to the written statement was rejected by the learned trial court and this Court in its extra ordinary jurisdiction under Article 227 of the Constitution of India refused to exercise interpose discretion. In that view of the matter, the said judgment would not be applicable to the facts of the present case. 8 The petition, therefore, is without any merit and as such, rejected. 9 Taking into consideration that the suit is of the year 1999, the learned trial court is directed to expedite the hearing of the suit and decide the same, as expeditiously as possible and 6 wp 9682-2010.sxw in any case, within a period of one year from today. (B.R. GAVAI, J)