1 Wp no.1753/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.1753 of 2010 Chandrakant Nivrutti Borkar ... Petitioner versus Madhukar Vaman Borkar & ors. ... Respondents ... Mr. S.S.Kulkarni for the petitioner. Mr.M.V.Rawool i/b P.B.Shah for respondent no.2. CORAM : D.G. KARNIK, J. DATED : 23rd July 2010 P.C. 1. Heard learned counsel for the petitioner and respondent no.2. 2. The office report shows that all the respondents except respondent no.5C have been served personally or through their family members. Respondent no.5C has refused to accept the service and therefore, it is deemed to be a proper service. 3. By this petition, the petitioner challenges the order dated 12 October 2009 passed by the learned Civil Judge, Jr. Division, Saswad rejecting the application of the petitioner (defendant no.1) for amendment of the written statement. The amendment appears to have been rejected on two grounds viz - 2 Wp no.1753/10 i) the application was made after commencement of the trial and hence by reason of proviso to Order 6 Rule 17 of the Code of Civil Procedure, the application could not be allowed. ii) By the proposed amendment, the defendants had sought to add pleadings which although were in the nature of counter claim and proper counter claim was not made, and hence the application was liable to be rejected. 4. So far as the first ground is concerned, the order is unsustainable. In Vidyabai Vs. Padmalatha, 2009(4) Mh.L.J 30, the Hon’ble Supreme Court has held that amended provisions of Order 6 Rule 17 and the proviso thereto are not applicable in respect of the suits filed prior to the amendment. Admittedly, the suit has been filed prior to the amendment and consequently, application could not have been rejected on that ground. 5. In view of the second ground of rejection, learned counsel for the petitioner seeks leave to withdraw the original application itself with liberty to apply afresh making proper counter claim. He submits that since the only ground for rejecting of the application of amendment which now survives is a technical ground, the leave to withdraw the application can be granted. I see no reason to refuse the leave. 6. For the reasons mentioned above, petitioner (defendant no.1) is permitted to withdraw the application for amendment of the written statement made at Exhibit-94 in the suit with liberty to apply afresh for the same subject matter. If fresh application is made, it shall be considered by the trial Court on its own merits without applying the 3 Wp no.1753/10 provisions of proviso to Order 6 Rule 17 in view of the fact that the suit has been filed prior to the amendment. 6. In view of the withdrawal of the original application itself, writ petition does not survive and is disposed of. (D.G. KARNIK,J.)