1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3303 OF 2010 1) Sanjay s/o Dattatraya Nevewani and two ors. - PETITIONERS VERSUS 1) Dr.Vilas s/o Dattatraya Nevewani and four others. - RESPONDENTS ***** Mr.Vinod P.Patil,Advocate for Petitioners; Mr.BS Deshmukh, Advocate for Respondent no.1. ----- CORAM : K.U.CHANDIWAL,J. DATE : 18th October,2010. PER COURT: 1) Heard. 2) Rejection of amendment in the written statement by the learned Joint Civil Judge, Junior Division, Chopada dated 26.1.2010, is questioned by the defendants. 3) The learned Judge has dealt with the provisions of Order VIII Rule 6-A of CPC, which contemplate about counter-claim by the defendants 2 and challenge of entertaining such counter-clam. The law is quite clear. The defendant has to set up his counter claim at the time of his defence or before the time limit for delivering his defence. These requisitions are not complied with. The other aspect of the matter is, the defendant no.1, father the petitioners, expired on 16.3.2006. This date is subsequent to the date of filing of the suit or written statement. The defendant no.4 did not file any written statement. The Will-Deed dated 6.7.2005, referred as a registered document, was not sought to be produced any time during life time of defendant no.1. These aspects were correctly considered by the learned Judge. 4) The law is indicated by the Apex court in the matter of Rajkumar Gurawara (Dead )Through L.Rs. Vs. M/s S.K.Sarwagi & Co.Pvt. Ltd. and Anr. reported in 2008 AIR SCW 4007. In paragraph 7, the Apex court has observed, - “It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation.” 3 5) The defendants desired to adopt surreptitious proceedings by way of giving go-bye to provision of Order VIII Rule 6-A CPC by making an application in terms of order VI Rule 17 of CPC. 6) The Writ Petition lacks merit, dismissed. No costs. (K.U.CHANDIWAL) JUDGE bdv/