1 W.P. 9769.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9769 OF 2011 Sadanand S/o Dattatraya Mahajan Age : 53 Yrs., Occ. Advocate R/o : Gandhi nagar, Padampura, Aurangabad. ....PETITIONER V E R S U S Avinash S/o Dattatraya Mahajan Age : 43 Yrs., Occ. Pensioner R/o : At Prachi Elderkar Colony, Vasmat Road, Parbhani. ..... RESPONDENT Mr. A.A.Joshi, Advocate holding for Mr. S.M.Gunjal, Advocate for the Petitioner. Mr. S.P.Deshmukh, Advocate holding for Mr. D.E.Padwale, Advocate for the respondent. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 21/12/2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The petitioner is the original defendant. The present respondent/original plaintiff had filed Suit for possession of one room and 2 W.P. 9769.2011 - [ J ] perpetual injunction in respect of another room. 3. The trial Court decreed the Suit in the year 2007. The petitioner preferred Appeal against the said Judgment and decree bearing R.C.A. No. 298 of 2007. During the pendency of the Appeal, the present petitioner filed application for amendment in the Written Statement on 03/08/2010 [ Exh. 23 ]. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed. 4. Mr. Joshi, the learned counsel for the petitioner submits that the lower appellate Court has failed to consider that the amendment sought is only clarificatory in nature. The petitioner was not aware of the facts which were sought to be incorporated by way of amendment as the petitioner did not possess the document at the relevant time. During the relevant time, the petitioner was under depression and pressure. He could not get proper advise and could not incorporate those facts. The learned counsel contends that the nature of defence would not change. According to the learned counsel, there was no impediment to allow the amendment in the Written Statement. 5. Mr. Deshmukh, the learned counsel for the respondent/original plaintiff supports the order and submits that the lower appellate Court has properly considered all the aspects. The 3 W.P. 9769.2011 - [ J ] Written Statement was filed by the present petitioner and thereafter even the evidence was adduced. The theories which are being put-forth were not at all taken. Even the theory of partial partition as is sought to be introduced was never raised in the pleadings or in the evidence. 6. With the assistance of the learned counsel, I have gone through the pleadings, the application and the order. 7. Vide the present application, the petitioner sought some new facts to be introduced and incorporated in the Written Statement, such as the source of the funds and about the partial partition. The petitioner has contested the Suit. The plaintiff is cross examined and the defendant also led his evidence. During the evidence, all these facts were never spelt out nor in the original Written Statement those facts were detailed. 8. No doubt, the amendment in the Written Statement has to be more liberally construed than the amendment in the plaint. But, one fact can not be lost sight that the said amendment application is made in Appeal that too after three ( 3 ) years of filing of the Appeal. The parties have led evidence. The respective parties put-forth their case and this plea of partial partition as is sought to be introduced, was never raised nor about the shares of the other family members, so also of the sale of the 4 W.P. 9769.2011 - [ J ] ancestral lands and the contribution of the funds in the construction of the disputed plot No. 56. All these facts are being raised for the first time by way of amendment. Such an amendment introducing new facts after the parties have adduced the evidence and the trial Court has given its dictum, can not be permitted in Appeal that too after three ( 3 ) years of filing of the Appeal. The lower appellate Court has properly exercised its discretion. As the discretion is exercised in plausible manner, this Court in its Writ Jurisdiction under Article 227 of the Constitution of India would not entertain the Writ Petition. 9. The Writ Petition as such is dismissed. 10. Rule is discharged. No costs. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 9769.2011 - [ J ]