1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 4673/2008 (Kusumtai @ Malini Vasantrao Bhagwat & another VERSUS Pandurang Mahadeo Dharmadhikari & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri M.P. Kariya, counsel for the petitioners. Shri Rahul D. Dharmadhikari, counsel for the R-7A to 7C/caveator. CORAM : SMT. VASANTI A. NAIK, J. DATE : OCTOBER 24, 2008. By this petition, the petitioners impugn the order passed by the Civil Judge (Senior Division), Achalpur on 13.08.2008, below Exh.291, allowing an amendment application filed by the respondents. The petitioners are the original plaintiffs. A suit was filed by the plaintiffs for partition of the suit property by metes and bounds and for putting them into possession of 1/7th share in the suit properties. In the alternative, a declaration was sought by the plaintiffs that the plaintiffs and the other defendants i.e. defendant nos.2 to 5 (Collectively), defendant nos.6A to 6D 2 (Collectively) and defendant nos.7A to 7C (Collectively) have acquired shares in the suit property excluding the defendant no.8. It was the case of the plaintiffs that Mahadev was the original owner of the suit property and it was necessary to partition the suit property amongst the plaintiffs and some of the defendants. The defendant nos.1, 2, 3, 4, 5, 7 and 8 filed a joint written statement and denied the claim of the plaintiffs. The defendants relied on a document, which was termed as Farkatnama- Kararnama but, according to the defendants, the said document was in the nature of a will executed by the original owner, Mahadev. This Farkatnama- Kararnama was executed on 30.05.1992 by the consent of all. While the recording of the evidence of the plaintiff was in progress, the defendant nos.1, 5, 7 and 8 filed an application for amendment of the written statement so as to substitute the word “memorandum of partition” for 3 the word “will” in the written statement. It was stated in the amendment application that the memorandum of partition was termed as Farkatnama-Kararnama but, was wrongly referred as a will and, therefore, it was necessary to substitute the word “memorandum of partition” for the word “will” wherever it occurred in the written statement. According to the defendants, the amendment was necessary for clarifying the matter in issue. The prayer made in the application was objected to by the petitioners. According to the petitioners, the proposed amendment changed the nature of the suit and it was filed at a very belated stage, when the plaintiff was being cross-examined. In view of the amended provisions of Order VI Rule 17 of the Code of Civil Procedure, the petitioners sought for the rejection of the application. The trial Court, however, by the impugned order dated 13.08.2008, allowed the amendment application. 4 Shri M.P. Kariya, the learned counsel for the petitioners, submitted that the trial Court failed to consider that the amendment changed the nature of the suit and also caused serious prejudice to the case of the petitioners. It is further submitted on behalf of the petitioners that the amendment application could not have been filed after the commencement of the suit and after the trial began. In this case, according to the counsel for the petitioners, the evidence of the plaintiff was tendered on affidavit and the plaintiff was being cross-examined, and hence, this was a case where the trial had begun and, therefore, the Court was not justified in allowing the amendment application. The counsel for the petitioners, relied on the judgments reported in AIR 2008 SCW 3225, AIR 2007 SCW 513, 2006(3) All M.R. 52, 2000(2) Mh.L.J. 812 and 2001(4) Mh.L.J. 159. Shri Rahul D. Dharmadhikari,the learned counsel for the caveator, supported the order 5 passed by the trial Court on 13.08.2008 and submitted that the trial Court was fully justified in allowing the amendment application as the document called Farkatnama-Kararnama was already filed by the defendants in the Court and the proposed amendment was filed merely with a view to clarify the matter. According to the learned counsel for the caveator, the defendants had stated in their written statement that the document was in the nature of a will and this was pleaded merely with a view to convey that original owner Mahadev desired to dispose of the property in that manner. The learned counsel for the caveator then submitted that the proposed amendment did not change the nature of the suit and the same was also necessary for effectively deciding the lis between the parties. The counsel for the caveator/ respondent sought for the dismissal of the writ petition. 6 I have perused the amendment application, the reply filed thereto, the written statement filed by the defendants and the impugned order dated 13.08.2008. It cannot be said that the trial Court had wrongly exercised its discretion in allowing the amendment application by the order dated 13.08.2008. The trial Court rightly held that the amendment did not come as a surprise to the plaintiffs as the plaintiffs were well aware about the presence of the document on record and the title or heading of the document. The trial Court was further justified in observing that mere reference to a document by a particular name would not affect its contents or its nature. Since the document was titled as Farkatnama- Kararnama, the trial Court thought, and rightly so, that there was no prejudice to the plaintiffs if the amendment application was granted. The amendment was merely in the nature of an explanation or a clarification and, therefore, the 7 trial Court did not commit any error, much less, a jurisdictional error in allowing the amendment application by the order dated 13.08.2008. The suit was filed in the year 1998 and, therefore, the amended provisions of Order VI Rule 17 of the Code of Civil Procedure could not have been strictly applied to the case in hand. The judgments reported in AIR 2008 SCW 3225, AIR 2007 SCW 513, 2006(3) All M.R. 52, 2000(2) Mh.L.J. 812 and 2001(4) Mh.L.J. 159 and relied on by the counsel for the petitioners, cannot be of any assistance to the case of the petitioners as each case has to be considered and judged on its own facts. The facts of the instant case show that the amendment did not change the nature of the suit and the amendment was also necessary for effectively deciding the lis between the parties. In fact, it is observed in the judgment reported in AIR 2008 SCW 3225 that liberal principles guide the exercise of discretion in allowing the amendment 8 applications. In most of the reported judgments relied on by the counsel for the petitioners, it is held by the Hon'ble Supreme Court and this Court that the powers to allow an amendment application are wide enough but, in the facts of those cases it was held that the amendment application was not rightly granted. The reported judgments cannot come to the rescue of the petitioners. For the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE APTE