1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 5508/2010 (Deepak Ramakant Kale & others VERSUS Narendrakumar Chhotelal Rewade & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri R.D. Dharmadhikari, counsel for the petitioners. Shri Bhoskar h/f Shri V.M. Deshpande, counsel for the R-1 to 5. CORAM : SMT. VASANTI A. NAIK, J. DATE : MARCH 16 , 2011 . Heard. The petitioners are the original defendants. A suit was filed by the plaintiffs/respondents for possession on the basis of the sale-deeds executed in their favour on 16.03.1977. The defendants/petitioners denied the claim of the plaintiffs and pleaded that the sale-deeds dated 16.03.1977 were not to be acted upon as the agreement of sale executed between the parties on 14.05.1976 clearly showed that the transaction between the parties was a loan transaction and the sale-deed dated 16.03.1977 was not an outright sale. The defendants/petitioners, therefore, filed a counter claim seeking cancellation of the sale-deeds. The trial Court dismissed the suit of the plaintiffs as well as the counter claim filed by the defendants. An appeal was preferred by the plaintiffs against the judgment passed by the trial Court. In the first appeal, an application was filed by the plaintiffs for producing two original agreements of sale dated 14.05.1976 on record. 2 On hearing the learned counsel for the parties, the application filed by the plaintiffs under Order 41 Rule 27 of the Code of Civil Procedure was allowed by the first appellate Court. After the same was allowed, the plaintiffs filed an application before the first appellate Court for amendment of the written statement to the counter claim filed by the petitioners. The application filed by the plaintiffs pointed out that there was an element of fraud as the original agreements of sale dated 14.05.1976 showed that the sale transactions were not loan transactions and were an outright sale. The plaintiffs wanted to state in the written statement that the agreements of sale produced by the original defendants were entirely different from the agreements of sale, which were produced by the plaintiffs before the first appellate Court in pursuance of the application under Order 41 Rule 27 of the Code of Civil Procedure. Since the original agreements of sale produced by the petitioners/defendants were different from the agreements of sale produced by the plaintiffs before the first appellate Court, the plaintiffs wanted to plead by the proposed amendment that the defendants had played fraud on the plaintiffs. The first appellate Court allowed the amendment application filed by the plaintiffs. On hearing the learned counsel for the parties and on perusal of the amendment application and the pleadings of the parties along with the impugned order dated 03.09.2010, it appears that the first appellate Court did not commit any error in allowing the amendment application filed by the plaintiffs for amending their written statement to the counter claim filed by the defendants. The plaintiffs had categorically stated in the amendment application that the 3 plaintiffs were not in possession of the original agreements of sale dated 14.05.1976 till they brought the papers pertaining to the criminal prosecution, to their lawyer. Since the plaintiffs traced out the original agreements of sale dated 14.05.1976, just before filing of the amendment application in the year 2007, the first appellate Court rightly allowed the amendment application, more so because the plaintiffs were permitted to produce the original agreements of sale dated 14.05.1976 on record by allowing the application filed by the plaintiffs under Order 41 Rule 27 of the Code of Civil Procedure. The appellate Court held that it could not be said that the plaintiffs did not produce the original agreements of sale dated 14.05.1976 before the trial Court in spite of due diligence. It is necessary to note that the plaintiffs may not have pleaded about the agreements of sale dated 14.05.1976 as the defendants pleaded and relied on the agreements of sale, which were distinct and separate from the agreements of sale dated 14.05.1976 but, were also executed on the same date. Since the agreements of sale dated 14.05.1976 were necessary for deciding the controversy between the parties and since they did not change the nature of the proceedings, the first appellate court was justified in permitting the plaintiffs to amend the written statement to the counter claim filed by the defendants. The first appellate Court held, and rightly so, that in case, the amendment was allowed, the petitioners would also have a right to consequentially amend their counter claim and to lead evidence on the said amendment. The order passed by the District Judge-I, Amravati on 03.09.2010 appears to be just and proper and calls for no interference in exercise of the writ jurisdiction. 4 The judgment reported in 2010(2) SCC 124 (Jaswant Kaur & another Versus Subhash Paliwal & others) cannot be made applicable to the facts of this case. In the result, the writ petition is dismissed with no order as to costs. JUDGE APTE