1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8667 OF 2009 Sunil Mahadev Ladekar ...Petitioner vs. Anusaya Mahadev Ladekar & Ors. ...Respondents Mr.J.S.Kapse i/b Ms B.P.Jakhade for the petitioner Mr.G.M.Savagave for respondent nos.1 to 4 CORAM :A.S.OKA,J. DATE : MARCH 12, 2010 P.C.: 1 The submissions of the learned counsel for the parties were heard on the earlier date. The parties were put to notice that the petition will be taken up for final disposal at admission stage. The challenge in this writ petition under Article 227 of the Constitution of India is to the Judgment and Order dated 15th September 2009 passed by the trial Court by which the application at Exhibit-82 has been rejected. 2 The first respondent is the original plaintiff. The first respondent filed a suit against the petitioner who is the first defendant and 2nd to 4th respondents for partition and separate possession of the suit property more particularly described in paragraphs 1(a) and 1(b) of the plaint. The present petitioner-first defendant has filed the written statement and Counter Claim to the suit. One of the prayers in the Counter Claim is for partition and separate possession of 6/20th share of the petitioner in the property subject matter of the counter- claim. There is a written statement filed by the 2nd to 4th respondents to the Counter-Claim. On 7th September 2009, an application was made by the petitioner for 2 amendment of the Counter Claim by adding a party to the Counter Claim and by adding paragraph 10-B to the Counter Claim. A prayer was also made to add certain portion in paragraph 10 of the written statement and Counter-Claim. By the impugned order, the said application has been rejected. The learned trial Judge held that the issues were already framed when the application for amendment was filed and on the very day affidavit in lieu of examination-in-chief was filed by the first respondent. The learned Judge observed that amended rule 17 of Order VI of the Code of Civil Procedure,1908 will apply to the amendment and as there is no explanation as to why amendment could not be made earlier, the application cannot be allowed. The learned Judge held that the amendment was time barred and therefore, application was required to be rejected. 3 The learned counsel for the petitioner on instructions stated that the petitioner is not pressing the application at Eh.82 to the extent to which a prayer is made for impleading one Sunil Mahadeo Ladekar as a party to the Counter Claim. He submitted that rest of the amendment ought to have been allowed in as much as proviso to Rule 17 of Order VI of the said Code which was brought on the statute book on 1st July 2002 will not apply to the present suit as the same has been instituted in the year 1997. He submitted that in the application for amendment it is specifically stated that after the written statement and counter-claim was filed, certain facts were revealed to the petitioner and the application for amendment is based on the said facts. He submitted that the reasons were assigned for delay in the said application which should have been considered by the trial Court. 3 4 The learned counsel for the respondents supported the impugned Judgment and order and submitted that the application which was belatedly made has been rightly rightly rejected by the trial Court. He submitted that the prejudice will be caused to the first respondent if the amendment is permitted to be carried out in the suit which is of the year 1997 at the stage when the first respondent has already filed an affidavit in lieu of examination-in-chief. 5 I have carefully considered the submissions. In the written statement and counter-claim in clause (A) of paragraph 10, the description of the alleged joint family property has been incorporated. It is stated that the said property is a joint family property apart from the suit properties incorporated in the suit. In the application for amendment it is stated that after the pleadings were filed, the petitioner learnt that the 2nd defendant sold his ½ share in the property described in paragraph 10-A of the Counter Claim on 16th August 1988 to one Rajashri Tanaji Jadhav and on 1st July 1990, he has purchased an area of 322 sq. ft. out of the said property. Therefore, amendment has been sought for adding clause clause (B) to paragraph 10 for incorporating the description of the said area admeasuring 322 sq. ft. The second amendment sought is for impleading one Sunil Mahadev Ladekar as a party to the counter claim. A prayer is made for incorporating additional averments in paragraph 10 regarding alienation made by the 2nd respondent in favour of the proposed defendant no.5. 6 As far as addition to the clause (B) of paragraph 10 is concerned, the same is based on the knowledge acquired by the petitioner during the pendency of the proceedings 4 and therefore, to that extent the application will have to be allowed. The prayer for impleading a party is not pressed by the learned counsel for the petitioner. The addition to paragraph 10 prayed for in the application is for incorporating the averments relating to the transaction between the 2nd respondent and proposed defendant. The prayer for adding the defendant no.5 is not pressed and hence that part of the amendment cannot be permitted. However, the petitioner can file a fresh application for amendment for adding details of the alienation made by the 2nd defendant. 7 Hence, the petition must succeed in part. Hence, I pass the following order : i) Impugned order dated 15th September 2009 is quashed and set aside. ii)The application at Exhibit-82 is partly allowed and the petitioner is permitted to add clause (B) to paragraph 10 in the written statement and counter claim. Rest of the amendment is not granted. iii)Amendment shall be carried out by the petitioner within a period of two weeks from the date on which writ of this order is received by the trial Court. iv)It will be open for the parties to the suit to file additional written statement to the amended counter- claim within a period of 8 weeks from the date on which a copy of amended counter claim is served to them. v) It will be open for the first respondent-plaintiff to file additional affidavit in lieu of examination- in-chief, if any, for dealing with the amendment. vi)Petition is partly allowed in above terms with no order as to costs. JUDGE