wp10765.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 10765 OF 2010 Shaikh Ayyub s/o Shaikh Babubhai ...Petitioner Versus Ashok s/o Narayan Uplanchi and others ...Respondents ..... Mr. M.B.W. Khan, advocate for the petitioner ..... CORAM: S. S. SHINDE, J. DATED: 3RD DECEMBER, 2010 PER COURT:- 1 This petition is filed challenging the order dated 20.9.2010 passed by the 4th Joint Civil Judge (Senior Division), Ahmednagar below Exh.156 in Regular Civil Suit No. 347 of 2004. 2 Counsel for the petitioner submits that the suit was withdrawn by the petitioner herein, however, the counter claim of the respondent was in existence. The petitioner filed his say to the said counter claim. However, no written statement was filed. Therefore, subsequent application was moved for amendment in the say, but the said wp10765.10 2 application came to be rejected by order dated 13.6.2007 on an application Exh 151 in R.C.S. No. 347 of 2004. Therefore, the petitioner herein filed another application Exh.156 for review of the earlier order dated 13.6.2007 and further sought permission to allow the petitioner to amend his say filed to the counter claim. However, the trial court has partly allowed the said application by order dated 20.9.2010. Hence, this petition. 2 Learned counsel for the petitioner submits that the suit was withdrawn by the petitioner. As soon as the suit was withdrawn, the contents of the suit cannot be taken into consideration by the Court, however, there was counter claim and in that counter claim the petitioner filed say and he wanted to amend the say filed to the counter claim. However, the said was declined. According to the counsel for the petitioner, rights of the petitioner are involved and therefore, in the interest of justice, application should have been allowed. Counsel further submitted that the reported judgment of the Hon'ble Supreme court which is relied upon on both the occasions by the trial court is applicable in case of the permission for amendment in the plaint and not applicable for amendment in the written statement. Learned counsel further submitted that in the interest of justice, the application for amendment should have been allowed. Learned counsel further invited my attention to the grounds taken in the petition wp10765.10 3 and submitted that petition deserves to be allowed. 3 It is not in dispute that the application filed by the petitioner below Exh.151 in R.C.S No. 347 of 2004 for amendment in the say to the counter claim, came to be rejected on 13.6.2007 by the IIIrd Joint C.J.S.D. Ahmednagar, While dismissing the said application, the trial court has placed reliance on the reported judgment of the Supreme court in the case of Ajendraprasadji N. Pande and Another Vs. Swami Keshavprakeshdasji N and Ors. reported in AIR 2007 SC 806. Relying on the said judgment, the trial court held that the amendment cannot be allowed at belated stage. The trial court has also taken into consideration that the defendants, who have filed counter claim has filed examined in chief vide Exh.52. He has also filed examined in chief of D.W.2 vide Exh.125. Defendants have also examined D.W.3 vide Exh.126. There is no cross examinations carried out by the plaintiff of these witnesses. The defendants have also filed evidence closed pursis vide Ex.127 and ultimately the matter has fixed for final argument. Therefore, at this stage the amendment cannot be allowed in view of the ruling cited supra. (Emphasis supplied). 4 It appears that the aforesaid order passed by the trial court is passed on 13.6.2007. It means that in the year 2007, the matter was posted for final arguments. However, it is not known as to why the wp10765.10 4 matter is pending till 20.9.2010. In my opinion, the attempt of the petitioner is only to protract the proceeding and not to allow the trial court to set at rest the controversy raised in the suit or the counter claim as the case may be. This Court expresses its displeasure for not concluding the trial of R.C.S. No. 347 of 2004 by the trial court inspite of the fact that the matter was ready for final argument in the year 2007 itself. 5 In the light of the above observations, I do not think that this writ petition can be entertained. Since the original application filed by the petitioner for amendment in the year 2007 and that itself was at belated stage which could not meet the requirement of Order VI Rule 17 proviso of C.P.C.. Therefore, this writ petition is misconceived and the same stands dismissed summarily. ( S. S. SHINDE. J.) rlj/