1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.7075 OF 2010 Rajendra C. Vasani & Anr. ...Petitioners. v. M/s. Dulabhdas & Sons ...Respondents. Mr.Deepak J. Lulia, adv. for the petitioners. Mr.Amrish G. Choksi-in-person on behalf of Respondent present in Court.. CORAM : J.H.Bhatia, J. DATE : 13th October, 2010 P.C.: 1 Heard the parties. Petition is filed by the original defendants against rejection of their Chamber Summons No.615 of 2010 for amendment in the written statement in S.C.Suit No.3776 of 2001. The trial Court after hearing the parties rejected the application on the ground of delays and latches and that the evidence is already commenced. 2 Admittedly, issues have been framed and affidavit in examination in chief has been tendered by the plaintiffs. Thus, the trial of the suit has been commenced. Suit is of 2001 and the Chamber Summons is taken out in June, 2010 for making the amendment. There are certainly delays and latches on the part of the defendant in 2 seeking amendment . However, it is settled position of law that before 2002 amendment in the C.P.C., under Order 6 Rule 17, amendment could be made in the pleadings at any stage in the interest of justice. Present suit was filed before the said amendment in the C.P.C. Therefore, merely because trial has commenced, amendment cannot be refused if otherwise it is in the interest of justice. On perusal of the proposed amendments, I find that proposed paragraphs 22A, 22B, 22D and 22E do not change the nature of the suit or the pleadings. By these amendments, defendants have only tried to place on record certain incidents to indicate that they are not trespassers. Therefore, amendment to that extent could be allowed. However, as far as proposed amendment in paragraph 22C is concerned, attempt is made to show that value of the property is more than pecuniary jurisdiction of the City Civil Court. The Defendants were silent for a period of about 9 years before moving amendment application and the parties proceeded to the trial on the assumption that the suit was properly valued and the Court has jurisdiction. At such a late stage, defendants cannot be allowed to make amendment, which would challenge the jurisdiction of the trial Court. This is an attempt to put spoke in the wheel of the justice and to cause delay in disposal of the suit for 3 removal of encroachment. 3 For the aforesaid reasons, petition is partly allowed subject to payment of cost of Rs.5,000/- by the defendants to the plaintiffs within four weeks from this date, proposed amendments as per Paragraphs 22A, 22B, 22D and 22E are allowed. However, the prayer to add paragraph 22C is rejected. Amendment be effected within four weeks before the trial Court. (J.H.BHATIA, J.) 4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.7082 OF 2010 M/s. Kirti Pen Mart & Ors. ...Petitioners. v. M/s. Dulabhdas & Sons ...Respondents. Mr.Deepak J. Lulia, adv. for the petitioners. Mr.Amrish G. Choksi-in-person on behalf of Respondent present in Court.. CORAM : J.H.Bhatia, J. DATE : 13th October, 2010 P.C.: 1 Heard the parties. Petition is filed by the original defendants against rejection of their Chamber Summons No.614 of 2010 for amendment in the written statement in S.C.Suit No.3777 of 2001. The trial Court after hearing the parties rejected the application on the ground of delays and latches and that the evidence is already commenced. 2 Admittedly, issues have been framed and affidavit in examination in chief has been tendered by the plaintiffs. Thus, the trial of the suit has been commenced. Suit is of 2001 and the Chamber Summons is taken out in June, 2010 for making the amendment. There are certainly delays and latches on the part of the defendant in 5 seeking amendment . However, it is settled position of law that before 2002, amendment in the C.P.C., under Order 6 Rule 17, amendment could be made in the pleadings at any stage in the interest of justice. Present suit was filed before the said amendment in the C.P.C. Therefore, merely because trial has commenced, amendment cannot be refused if otherwise it is in the interest of justice. On perusal of the proposed amendments, I find that proposed paragraphs 22A, 22B, 22D and 22E do not change the nature of the suit or the pleadings. By these amendments, defendants have only tried to place on record certain incidents to indicate that they are not trespassers. Therefore, amendment to that extent could be allowed. However, as far as proposed amendment in paragraph 22C is concerned, attempt is made to show that value of the property is more than pecuniary jurisdiction of the City Civil Court. The defendants were silent for a period of about 9 years before moving amendment application and the parties proceeded to the trial on the assumption that the suit was properly valued and the Court has jurisdiction. At such a late stage, defendant cannot be allowed to make amendment, which would challenge the jurisdiction of the trial Court. This is an attempt to put spoke in the wheel of the justice and to cause delay in disposal of the suit for 6 removal of encroachment. 3 For the aforesaid reasons, petition is partly allowed subject to payment of cost of Rs.5,000/- by the defendants to the plaintiffs within four weeks from this date, proposed amendments as per Paragraphs 22A, 22B, 22D and 22E are allowed. However, the prayer to add paragraph 22C is rejected. Amendment be effected within four weeks before the trial Court. (J.H.BHATIA, J.)