1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.4839 OF 2009 1 Shivaji s/o Baburao Pingle, age: 45 years, Occ: Agri., R/o Dhanora Road, Opposite Asha Talkies, Beed, Tq. and District Beed. 2 Annasaheb s/o Baburao Pingle, age: 42 years, Occ: Service, R/o Anandnagar, Canal Road, Beed, Tq. & District Beed. Petitioners Versus 1 Rangnath s/o Kashinath Pingle, age: 62 years, Occ: Pensioner, Retired from Government Service, R/o Garkheda Parisar, Behind Gajanan Temple, Aurangabad, Tq. & District Aurangabad. 2 Vaijnath s/o Kashinath Pingale, age: 59 years, Occ: Pensioner & Agri., R/o Pingle Galli, Beed, Tq. and District Beed. Respondents Mr.D.J.Choudhari, advocate for petitioners. Respondent No.1 served. Mr.S.P.Deshmukh, advocate for Respondent No.2. CORAM : R. M. BORDE, J. DATE : 21st April, 2010. 2 ORAL JUDGMENT : 1 Heard Shri D.J.Choudhari, learned Counsel for petitioners and Shri S.P.Deshmukh, learned Counsel for Respondent No.2. Respondent No.1, served. Rule, made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 An application tendered by petitioners - original defendants seeking amendment in paragraph 3 of the written statement is rejected by trial Court in view of the order passed on 09.04.2009 and said order, passed by the trial Court, is subject matter of challenge in this petition. 3 Respondents -original plaintiffs presented suit bearing R.C.S. No. 35/2004 claiming decree of declaration of ownership and perpetual injunction in respect of agricultural properties. 4 It is not necessary to go into factual aspects of the matter. Suffice it to say that contentions raised in the plaint were controverted by the contesting defendants by filing written statement. Defendants tendered an application seeking amendment in para 3 of the written statement. They wanted to contend, by virtue of proposed amendment, that contention raised by plaintiffs that there was a partition effected between Baburao and Kashinath in the year 1967, is incorrect. However, in the written statement originally presented, it is noted as, "said contention is correct". The application was opposed by respondents - original plaintiffs contending that the admission once given cannot be permitted to be withdrawn. It is 3 argued by defendants that mistake occurring in paragraph 3 of the written statement is inadvertent and defendants realized the mistake only at the time of presentation of affidavit evidence on their behalf and as such, application for amendment is presented. 5 On going through contents of paragraphs 3, 7 and 10, it does appear that the case put up by defendants before trial Court is that there was partition between the parties during life time of Abaji Pingale i.e. since 1950. However, if contents of paragraph 3, as unamended, are taken into account, it gives an impression that defendants have admitted the case put up by plaintiffs in respect of partition having been effected in the year 1967. The contention raised by defendants that correction sought for in paragraph no. 3 is in consonance with the contentions raised by defendants in paragraphs 7 and 10 of the written statement, appears to be correct. The argument advanced by defendants that the mistake occurring in paragraph 3 is inadvertent one and is typographical appears to be correct. While raising objection to the consideration of application, it is argued that as recording of evidence has commenced, the Court shall not permit amendment to the written statement, as defendants have failed to prove that they acted with due diligence. As stated earlier, the mistake appears to be typographical and inadvertent mistake can be corrected after same has come to the notice of the party concerned and as such, restriction imposed under Order VI Rule 17 of the Code of Civil Procedure will not be an impediment. 6 Learned Counsel appearing for Respondents - original plaintiffs 4 has sought leave to place reliance on the judgment in the matter of M/s Modi Spinning and Weaving Mills Co. Ltd. and another Vs. M/s Ladha Ram & Co., reported in AIR 1977 SC 680. Plaintiffs contend that the application tendered by defendants has an effect of introducing entirely different and new case displacing the plaintiffs and, therefore, such amendment shall not be permitted. 7 On going through the reported judgment, it appears that facts of said mater are totally different. Defendants in the reported matter wanted to replace two paragraphs and further wanted to introduce new contentions thereby displacing plaintiffs’ case in its entirety. In the instant matter, an inadvertent mistake occurring in paragraph 3 of the written statement in respect of one single word is sought to be corrected. The ratio laid down in the reported matter is not applicable to the instant case. 8 Learned Counsel for the petitioner – original defendants seeks leave to place reliance on the judgment in the matter of Panchdeo Narain Srivastava Vs. Km.Jyoti Sahay and another, reported in AIR 1983 SC 462, and contend that amendment to the plaint seeking withdrawal of admission of fact can be permitted. 9 In the instant matter, by effecting a correction in one sentence occurring in paragraph 3 of the written statement, defendant wants to bring his pleading in harmony with the contentions raised by him in other part of the written statement. In fact, there is no question of withdrawal of admission given by defendants. It is a case of correction of inadvertent 5 mistake occurring in para 3 of the written statement and defendants can be permitted to correct same. 10 For the reasons recorded above, I am of the opinion that the trial Court has adopted erroneous approach in rejecting the application tendered by defendants seeking amendment to the written statement. The impugned order passed by trial Court, therefore, needs to be quashed and set aside. 11 In the result, petition is allowed. Order dated 09.04.2009, passed by III Joint Civil Judge, Junior Division, Beed, below Exhibit-74 in Regular Civil Suit No.35/2004 is quashed and set aside and the application presented by defendants at Exhibit-74 shall be deemed to have been allowed. 12 Rule is accordingly made absolute. However, in the facts and circumstances of this case, there shall be no order as to costs. ( R. M. BORDE) JUDGE adb/wp483909