1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3797 OF 2009 1 Syed Ahmed s/o Syed Nizam, age: 54 years, Occ: Agri., R/o Chikalthan, Tq. Kannad, District Aurangabad. 2 Syed Pashha s/o Syed Nizam, age: 51 years, Occ: Agri., R/o Chikalthan, Tq.Kannad, District Aurangabad. 3 Syed Mqsood s/o Syed Nizam, age: 48 years, Occ: Agri., R/o Chikalthan, Tq. Kannad, District Aurangabad. 4 Syed Mushtuq s/o Syed Nizam, age: 43 years, Occ: Agri., R/o Chikalthan, Tq. Kannad, District Aurangabad. Petitioners Versus 1 Muzammil Khan s/o Chand Khan, age: 65 years, Occ: Agri., R/o Kannad, Tq. Kannad, District Aurangabad. 2 Ayyub Khan s/o Chand Khan, age: 68 years, Occ: Business & Agri., R/o Chaman Khan Ka Bungalow, Kannad, Tq. Kannad, Dist.Aurangabad. 3 Usman Khan s/o Chand Khan, age: 53 years, Occ: Business & Agri., R/o Kannad, Tq. Kannad, District Aurangabad. Respondents 2 Mr.V.J.Dixit, Senior Counsel holding for Mr.M.M.Joshi, advocate for the petitioners. Mr.S.G.Sangle, advocate for Respondent No.1. Mr.Harshad Joshi, advocate holding for Mr.S.V.Gangapurwala, advocate for Respondents No.2 & 3. CORAM: R.M.BORDE, J. DATE : 19th November, 2009. ORAL JUDGMENT: 1 Heard Shri V.J.Dixit, learned Senior Counsel holding for Shri M.M.Joshi, advocate for the petitioners, Shri S.G.Sangle, learned Counsel for Respondent No.1 and Shri Harshad Joshi, learned Counsel holding for Shri S.V.Gangapurwala, advocate for Respondents No.2 & 3. Rule, made returnable forthwith and heard finally by consent of the parties. 2 An application tendered by petitioners - original defendants, under Order VI Rule 17 of the Code of Civil Procedure seeking amendment to the written statement, presented in Regular Civil Appeal No.301/2006 has been rejected by the Principal District Judge, Aurangabad, in view of the order passed on 04.03.2009. 3 Plaintiffs – Respondents herein presented suit claiming recovery of possession of agricultural property. After proper contest, suit was decreed. Original defendants have preferred an appeal being Regular Civil Appeal No.301/2006 to District Court, Aurangabad and same is pending for final disposal. In pending appeal, defendants presented an application at 3 Exhibit-45 requesting the Court to permit defendants to amend the written statement. The proposed amendment contained in paragraph 9-A relates to issuance of ownership certificate by the Consolidation Officer as well as bar provided under the provisions of Section 36-A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 in respect of entertainability of the suit by Civil Court, wherein issues covered by the provisions of Consolidation Act are raised. Defendants also seek permission to raise a plea in respect of tenancy rights claimed by them as well as contentions raised as regards adverse possession. 4 The proposed amendment sought in paragraphs no.9-B and 9- C relates to the aspects which were within the knowledge of defendants when they have presented their defence before the trial Court. Defendants, as such, cannot be permitted to carry out amendment noted in paragraphs no.9-B and 9-C at belated stage. 5 It is contended that as the contentions raised in para 9-A of the proposed amendment relates to issuance of ownership certificate by the Consolidation Officer, so also defendants are taking up defence in respect of bar of entertainability of suit in view of provisions of Section 36-A of the Consolidation Act, the amendment application can be considered to that extent and they may be permitted to raise relevant plea at the appellate stage. 6 Learned Senior Counsel appearing for petitioners has placed reliance on the judgment in the matter of Maroti s/o Ramchandra Parsutkar & another Vs. Ramdas s/o Khati Pidurkar & others, reported in 2008 (3) ALL MR 175. This Court has taken a view that if the amendment relates to bar in 4 respect of entertainability of the suit, such amendment can be permitted even at appellate stage. In paragraph 14 of the judgment, it is observed by the Court, thus: “However, since the content of the amendment sought relates to the very factum of jurisdiction of the Civil Court, and in past, such prayer is entertained by this Court and even by Apex Court even at the second appellate stage, it has to be considered that the point being one of jurisdiction could be raised even in execution proceeding. Therefore, and nothing precludes such amendment being allowed at this stage.” 7 Considering the fact that the proposed amendment contained in paragraph 9-A relates to bar of jurisdiction in respect of entertainability of the suit under Section 36-A of the Consolidation Act, amendment contained in the relevant paragraph can be permitted. However, defendants cannot be permitted to carry out amendment noted in paragraphs no.9-B and 9-C. In this view of the matter, writ petition has to be allowed. 8 The order dated 04.03.2009, passed by Principal District Judge, Aurangabad, below Exhibit-45 in Regular Civil Appeal No.301/2006, is quashed and set aside. Petitioners – original defendants can be permitted to incorporate contents of paragraph no.9-A of the amendment application. The application presented at Exhibit-45 is allowed to that limited extent. Plaintiffs shall have liberty to seek amendment in the pleadings consequent upon incorporation of paragraph no.9-A in the written statement by defendants. Since amendment sought is at appellate stage and the application is presented at belated stage, Respondents – original plaintiffs shall have to be compensated by directing the petitioners to pay costs. The 5 application presented by defendants at Exhibit-45 is allowed to the limited extent as noted above, however, subject to payment of costs of Rs.3000/- (Rs.Three thousand) payable to the respondents/plaintiffs, before the first appellate Court within six weeks from today. All the contentions that would be raised by respective parties, shall be considered by the first appellate Court while dealing with the appeal. 9 Rule is made absolute in above terms. (R.M.BORDE) JUDGE ******* adb/wp379709