1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 406 OF 2010 Sahebrao s/o Venkatrao Pole and anr. ...Petitioners VERSUS Shyamrao s/o Namdeorao Borkar ...Respondent ..... Shri P.S.Agrawal, advocate for the petitioners Respondent absent, although served ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 16 th September, 2010 PER COURT : 1 Heard Shri P.S.Agrawal, advocate for the petitioners. Respondent absent, although served. 2 At the request of learned counsel for the petitioners, leave granted to correct the prayer clause of the present petition. Amendment to be carried out forthwith. 3 This is a petition filed by the petitioners (original 2 defendants), challenging the order dated 9.11.2009, passed by the Civil Judge, Junior Division, Hingoli below application at Exh.21 in Special Civil Suit No. 6 of 2008, thereby rejecting the application of the petitioners(original defendants) for amendment of the written statement. 4 Respondent, namely Syamrao Namdeorao Borkar i.e. original plaintiff filed Special Civil Suit No. 6 of 2008 in the Court of Civil Judge, Junior Division, Hingoli seeking relief of declaration in respect of House No. 281, situated at Lasina on 26.2.2008. The petitioners (original defendants) appeared therein and filed their written statement on 3.7.2008 and denied the averments and contentions of the plaintiff therein. In the said written statement, the petitioners contended that the suit property was purchased from one Ganesh Pole by registered sale deed. It is further contended that one Prabhakar Vyankatrao had filed Special Civil Suit No. 20 of 2007 challenging the sale deed in favour of the respondent. It is also contended that Vyankatrao Pole filed Regular Civil Suit No. 66 of 2007 for injunction against the respondent and the said suit is pending on the file of learned Civil Judge, Junior Division, Hingoli. 5 Thereafter, the petitioners herein i.e. original defendants 3 filed application below Exh. 21 for the amendment of the written statement. As per the proposed amendment, para nos. 9A, 9B and 9C, as stated in para no.2 of the said application, were to be incorporated in the written statement filed by the petitioners. In the said proposed amendment, it is stated that Special Civil Suit No. 21 of 2007, filed by Prabhakar for partition and separate possession in respect of the suit property, has been dismissed by the learned Civil Judge, Junior Division, Hingoli on 14.7.2009. The petitioners intended to bring the subsequent events on record by way of proposed amendment, and therefore, preferred the said application for amendment of the written statement on 3.10.2009. 6 The respondent herein filed his say on 9.11.2009 and opposed the said application vehemently contending that the proposed amendment would change the nature of the suit and would cause prejudice to the plaintiff and also contending that the petitioners were aware about the facts of the proposed amendment and nothing prevented the petitioners to make the averments in that respect in the original written statement. 7 After considering the contents of the application for amendment as well as considering the say of the respondent, 4 learned Civil Judge, Junior Division, Hingoli, rejected the said application by order dated 9.11.2009 observing that the proposed amendment is inconsistent to the earlier pleadings reflected in the written statement and the issues were already framed one year back and the petitioners did not show diligence, and hence, said application under Order VI Rule 17 of the Civil Procedure Code was not tenable. 8 Being aggrieved and dissatisfied by the said order, the petitioners have preferred the present petition and prayed for the quashment of the said order dated 9.11.2009 and also prayed that the application below Exh. 21 for amendment of the written statement be allowed. 9 Learned counsel for the petitioners canvassed that the proposed amendment is in respect of bringing the subsequent events on record and it is not at all inconsistent with the earlier pleadings made by the defendants in the original written statement. It is also canvassed by the learned counsel for the petitioners that by way of proposed amendment, the complexion of the proceedings would not be changed, and in fact, the proposed amendment is necessary for determining the real questions in controversy between the parties. It 5 is also submitted by learned counsel for the petitioners that if the proposed amendment is allowed, no prejudice would be caused to the respondent, since the respondent would get due opportunity to meet with the said amendment at the time of evidence. 10 To substantiate the said arguments, learned counsel for the petitioners relied upon the following observations made by Hon'ble Supreme Court in the case of Baldev Singh and ors. vs Manohar Singh and anr.etc. reported at AIR 2006 SC 2832 (1) :- " 16. This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint. In the case of M/s. Modi Spinning and Weaving Mills Co.Ltd. and Anr. vs M/s. Ladha Ram and Co. [(1976) 4 SCC 320], this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that defendants/appellants are not allowed to take inconsistent pleas in their defence. 17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already 6 commenced. For this reason, we have examined the records and find that, in fact,the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record,it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinafter, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court. “ 11 Learned counsel for the petitioners also relied upon the following observations made by Hon'ble Supreme Court in the case of North Eastern Railway Administration, Gorakhpur vs Bhagwan Das (D) by L.Rs., reported at AIR 2008 SC 2139 :- " 15. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled, Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In 7 Pirgonda Hongonda Patil vs Kalgonda Shidgonda Patil and " 15. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled, Order 6 Ors. which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. “ 12 Accordingly, learned counsel for the petitioners urged that the impugned order is erroneous and the application for amendment preferred by the petitioners be allowed in the interest of justice. 13 Apparently, on perusal of the contents of the original written statement, filed by the petitioner on 3.5.2008, and also on perusal of the application preferred by the petitioners for amendment of written statement on 3.10.2009, it appears that the proposed amendment sought by the petitioners, in para no.2 thereof, is in respect of the occurrences of subsequent events, which the 8 petitioners intend to bring on record, and therefore, proposed amendment is required to be allowed. Moreover, if the proposed amendment is allowed, no prejudice would be caused to the respondent (original plaintiff), since he would get the opportunity to meet with the same at the time of evidence during trial. 14 Besides that, it also appears that the proposed amendment is necessary for determining the real questions in controversy between the parties, and hence, same is required to be allowed, although the petitioners have preferred the application for amendment after framing of issues, since the amendment can be allowed at any stage of the suit in the proceeding in accordance with Order VI Rule 17 of the Code of Civil Procedure. Moreover, reliance also can be placed on the observations made by Hon’ble Supreme Court in the afore said Rulings (supra). Accordingly, I am inclined to accept the submissions advanced by learned counsel for the petitioners. 15 In the circumstances, the impugned order dated 9.11.2009 is erroneous and unsustainable, and hence, same is required to be quashed and set aside and the application for amendment preferred by the petitioners before the learned Trial 9 Judge is required to be allowed in the interest of justice, by allowing the present petition in that respect. 16 In the result, present petition is allowed in terms of prayer clause ‘C’ thereof and the impugned order dated 9.11.2009, passed by the Civil Judge, Junior Division, Hingoli, below application Exh.21 in Civil Suit No. 6 of 2008 stands quashed and set aside, and the said application Exh.21 for amendment of written statement is allowed and the petitioners are directed to carry out the amendment within the period of two weeks from the date of receipt of writ of this court by the trial Court. (SHRIHARI P. DAVARE, J.) dbm/wp406.10