1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6789 OF 2009 Mathew A. Bediako .. Petitioner Versus Francis Mathew & Ors. .. Respondents Mr.Mohan Pungalia i/by Mr.A.M.Pungalia for the petitioner. Ms.Sonali Kunekar i/by Mr.Vikas Mahangare for respondent No.1. CORAM : A.S.OKA, J. DATE : 26 th August 2009. P.C.: . The petitioner is the 3 rd defendant who applied for amendment of the written statement after cross-examination of the plaintiff made by the defendant No.1 was partly recorded. By the impugned order, the application for amendment has been rejected. The 1 st respondent is the original plaintiff. The 1 st respondent filed a money suit. In the plaint and in particular in paragraph 1, it is specifically asserted that the 1 st defendant is an unincorporated association and the 2 nd to 25 th defendants are the members of the 1 st defendant. The written statement was earlier 2 filed in the year 2006. The application for amendment of the written statement was made on 01 st April 2009 for incorporating a paragraph for raising a contention that 2 nd to 25 th defendants are not the members of the 1 st defendant and therefore are not liable to meet or contribute to the liabilities and obligations of the 1 st defendant. By the amendment it was sought to be contended that no individual can become a member of the 1 st defendant. By the impugned order, the said application has been rejected. The learned trial Judge has noted that affidavit in lieu of examination-in-chief was filed by the plaintiff on 12 th November 2007, his cross-examination commenced on 01 st August 2008 and a part of his cross-examination by the 1 st defendant was completed on 07 th March 2009. The learned Judge noted that the application for amendment was filed thereafter. 2. The learned counsel appearing for the petitioner pointed out that in the original written statement there is a general denial of the assertions made in the plaint. He submitted 3 that no individual can become member of the 1 st defendant. He submitted that as there is already a general denial in the written statement of the averments made in the plaint, the amendment which seeks to incorporate a specific denial ought to have been permitted by the trial Court. He submitted that the learned trial Judge has taken erroneous view of the matter and has rejected the application for amendment which ought to have been allowed. 3. I have considered the submissions. It will be necessary to refer to the paragraph No.1 of the plaint. The relevant portion of which reads thus: 1. Defendant No.1 is an unincorporated Association and the members of Defendant No.1 or the individuals who constitute Defendant No.1 number in thousands. Defendants 2 to 25 are members of Defendant No.1 and also its office- bearers and are elected to their respective offices by the members of Defendant No.1. Defendant No.2 is the President. Defendant No.3 is the Secretary, Defendant No.4 is the Undersecretary, Defendant Nos.5 to 9 are Associate Secretaries, Defendant No.10 is the Treasurer, Defendant No.11 is the Under Treasurer, Defendant Nos.12 to 16 are Associate Treasures, Defendant Nos.17 to 25 are General Vice Presidents (Source of Information: Official website of Defendant 4 No.1). Since the members of Defendant no.1 are numerous, the plaintiff has joined Defendants 2 to 25 as parties to the suit ..... 4. The averment is very specific that 2 nd to 25 th defendants are the members of the 1 st defendant. There is further averment that the 2 nd defendant, 3 rd defendant and 4 th defendant are the office bearers. It is stated that even 5 th to 25 th defendants are holding various offices with the 1 st defendant. Thus, the averments made in the plaint are very specific. Not only that it is stated that 2 nd to 25 th defendants are members of the 1 st defendant but the offices respectively held by them have been set out in paragraph 1. In the written statement filed by the petitioner it is true that in the first paragraph there is general denial of all the averment made in the plaint. Paragraph 3 of the written statement deals with the averments made in paragraph 1 of the plaint. The paragraph 3 is very lengthy paragraph in which there is absolutely no denial of the allegation that the 2 nd to 25 th defendants are members and office bearers of the 1 st defendant. As noted earlier, the application for 5 amendment has been filed for incorporating a denial to the allegation that the said defendants are members of the 1 st defendant. Thus, in the written statement which is filed in the year 2006, there is no specific denial of the said specific and elaborate averments made in paragraph 1 of the plaint. In the application for amendment filed by the petitioner, there is no reason assigned as to why the application was being made nearly six months after affidavit in lieu of examination-in-chief was filed. In fact, there is no explanation for delay. In view of the law laid down by the Apex Court, only on this ground the application could have been rejected. It can be argued that the effect of failure to specifically deny the averments made in paragraph No.1 of the plaint is that the concerned defendants shall be deemed to have admitted the averments in paragraph 1 of the plaint. By belatedly amending the written statement, the said admission is sought to be withdrawn. Considering the aforesaid aspects, I find no error in the impugned order. 6 5. The original plaintiff has filed the suit essentially claiming a money decree against the 1 st defendant. Therefore, the original plaintiff will have to adduce evidence and establish that the 2 nd to 25 th defendants have any liability. For establishing the liability, it is obvious that the plaintiff will have to establish that the 2 nd to 25 th defendants are the members of the 1 st defendant and are liable as such. 6. Subject to what is observed above, no case is made out for interference. Petition is rejected. However, all contentions of the petitioner on merits of the suit are expressly kept open. (A.S.OKA,J)