1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.3391 of 2009 (M/s. First Commercial Pvt. Ltd. v. Smt. Saroj Ravi Kashikar and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri V.V. Bhangde, Advocate for Petitioner. Shri M.B. Naidu, Advocate for Respondents. Coram : R.C. Chavan, J. Dated : 30 th September, 2009 This petition is directed against the order passed by the learned Civil Judge, Senior Division, Nagpur, rejecting the petitioner’s application for amendment to the plaint after the defendants were allowed to amend their written statement. I have heard both the learned counsel for the petitioner and the respondents. The amendments, which were sought by the petitioner in the plaint before the learned Trial Judge, are not consequential to the amendments effected by the defendants in their written statement. As rightly pointed out by the learned counsel for the respondents, the plaintiff was aware of the defence which the defendants 2 were to take and in fact had devoted at least two paragraphs of the plaint for recounting what was the defence of the respondents in earlier Civil Suit No.935 of 2006 as also in CTS Appeal No.706 of 2006. The plaintiff had in fact also sought to explain in paragraph 7 of the plaint as to how Gehenibai had predeceased her mother Laxmibai. Therefore, the learned counsel for the respondents is right in submitting that having known the defence of the respondents, there was absolutely no reason for the petitioner to fail to incorporate all these pleas when the plaint was filed. The application does not give any clue as to why the need to amend the plaint arose on 21-1-2009 when the application for injunction came to be rejected sometime in October 2008. The written statement itself was filed on 15-11-2007. The application does not give any reason as to why the application was required to be filed in 2009 after the issues were struck. The learned counsel for the petitioner submits that mere delay cannot be a ground for rejecting the application for amendment, whereby a material plea was sought to be raised, and for this purpose, he places reliance on a judgment of the Supreme Court in Pradeep Singhvi and another v. Heero Dhankani and others, reported at (2004) 13 SCC 432. In that case, the Court had held that 3 though the trial had commenced, the proposed amendment would not irreparably prejudice the plaintiffs. The learned counsel for the respondents places reliance on the two judgments of the Supreme Court. In Ajendraprasadji N. Pande and another v. Swami Keshavprakeshdasji N. and others, reported at AIR 2007 SC 806, the amendment was sought after the evidence of three witnesses were over, and Vidyabai and others v. Padmalatha and another, reported at AIR 2009 SC 1433, the Court held that rejection of an application for amendment after the trial had commenced was not wrong and set aside grant of leave by the High Court to amend the written statement. The question as to whether an amendment could be allowed after the trial has commenced, would depend on whether the pleas, which are sought to be raised, were available to the plaintiff when he filed the plaint or at an earlier point of time, and whether the justification for not raising these pleas at that time has been given. In this case, there is nothing to show that the plaintiff could not have raised those pleas when the plaint was first filed or that he came to know of the facts only after the written statement was amended. Merely because the written statement was permitted to be amended 4 after the issues were struck, it does not follow that the plaintiff would also get a right to re- write a plaint when he was all along aware of the defences which had been raised. The judgment of the Supreme Court in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, reported at AIR 1969 SC 1267, has no relevance, since the application was not rejected on a mere technicality. The facts in that case were altogether different. In view of this, it cannot be said that the learned Trial Judge erred in rejecting the application. It may be seen, as alleged by the learned counsel for the respondents, that the story, which is now sought to be introduced by the amendment, is indeed new, though it may not be contradictory to the earlier stand taken by the plaintiff. Thus, no interference is called for. The petition is, therefore, dismissed. Judge. pdl