1 W.P.No.6024/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.6024 OF 2011. 1. Namdeo S/o Gyanoba Kakade, Age 71 years, Occ.Agriculture, R/o Tandulja, Tq.and Dist. Latur. 2. Narayan S/o Wamanrao Kakade, Age 38 years, Occ.Agriculture, R/o Tandulja, Tq.and Dist. Latur. 3. Bapusaheb S/o Wamanrao Kakade, Age 28 years,Occ.Agriculture, R/o Tandulja, Tq.and Dist. Latur. ... Petitioners. Versus Mokshada D/o Namdeo Kakade, Age 40 years,Occ.Household, R/o Barshi, Tq. Barshi, Dist.Solapur. ... Respondent. ... Mr.C.R.Deshpande, advocate for the petitioners. Mr.M.D.Gite, advocate for the Respondent. ... 2 W.P.No.6024/11 CORAM : S.V.GANGAPURWALA,J. Date : 22.11.2011. ORAL JUDGMENT : 1. Heard. 2. Rule. Rule returnable forthwith. With the consent of the parties, the petition is taken up for final hearing. 3. The petitioner is the original defendant. The present Respondent has filed a suit for partition and separate possession of agricultural land Block No.201, admeasuring 2 hectares 3 ares. The plaintiff also filed his examination-in-chief. At that time, the present petitioner filed an application for amendment in the written statement. The said application for amendment is rejected. Aggrieved thereby, the present petition is filed. 4. Mr.Deshpande, learned counsel for the petitioner submits that the Court has taken a very hyper-technical approach while rejecting 3 W.P.No.6024/11 the application for amendment. The Courts are more liberal while construing the amendment in the written statement than that in the plaint. For the said purpose learned counsel relies on the judgment in the case of "Baldev Singh and others Vs. Manohar Singh and another etc." reported in 2006(5) ALL MR (S.C.) 107. The learned counsel further contends that defendant is also entitled to take inconsistent pleas but in this case the defendants are only trying to clarify the pleadings by putting proper acreage. The same would not cause prejudice to the plaintiff. 5. Mr.Gite, learned counsel for the Respondent supports the order and states that the amendment application is filed at a belated stage. The trial has commenced. The plaintiff has led his examination-in-Chief. No due diligence is shown in view of proviso of Order 6 Rule 17 of the C.P.C., the present amendment can not be allowed. Learned counsel relies on the judgment of the Apex Court in the case of "Vidyabai and others Vs. Padmalatha and another" 4 W.P.No.6024/11 reported in (2009) 2 Supreme Court Cases 409. The learned counsel further contends that the said amendment is prejudicial to the plaintiff and the same can not be allowed. The trial Court has properly considered all the aspects and rejected the application. 6. With the assistance of the learned counsel, I have gone through the order. There can not be any dispute with the proposition that the amendment in the written statement has to be more liberally construed. Examination-in-Chief is led but no cross-examination has been conducted. The plaintiff will have an opportunity to meet the case put forth by the defendants in the written statement. The merits of the amendment application are not required to be considered while considering the application for amendment. By the proposed amendment, the nature of the defence would not change. 7. In view of the above, I am inclined to allow the amendment. As such I pass the following order : 5 W.P.No.6024/11 (i) The application Exh.58 filed by the petitioner for amendment is allowed subject to payment of cost of Rs.2,000/- (Rupees two thousand) to the present Respondent. The said cost shall be paid within a period of two (2) weeks from today in the lower Court. The plaintiff shall have liberty to file additional examination-in-Chief to the said amended part. (S.V.GANGAPURWALA,J.) asp/office/wp6024.11