1 WP-381-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 381 OF 2010 Mr. Bhau Dhayarkar ) Age: 77 years, Occ: Agriculturist, ) having address at: Mukkam Dudulgaon, ) (Dhairkarwadui) Taluka Haveli, ) Zilla Pune. ).. Petitioner (Orig. Plaintiff) Versus 1. Shri Bhanudas Gopal Dhairkar ) Age Adult, Occ: Agriculturist, ) 2. Shri Gyaneshwar Gopal Dhairkar ) Age: Adult, Occ: Agriculturist, ) 3. Shri Sampat Gopal Dairkar, ) Age: Adult, Occ: Agriculturist, ) 4. Shri Tukaram Gopal Dhairkar ) Age: Adult, Occ: Agriculturist, ) 5. Shri Ganpat Gopal Dhairkar ) Age: Adult, Occ: Agriculturist. ) All having address at: Dudulagaon, ) (Dhairkarwadi), Taluka Haveli, ) District Pune. ).. Respondents (Orig. Defendants) Mr. V.V.Kabade (Sawant)Advocate, for the petitioner Mr. Dilip Bodake, Advocate for the respondent Nos. 1 to 5. CORAM: J.H.BHATIA,J. DATE : 5th October, 2010. 2 WP-381-10.sxw JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard learned Counsel for the parties. 2. The petitioner filed Special Civil Suit No. 375 of 2003 in the Court of Civil Judge, Senior Division, Pune, making two prayers. One is for removal of encroachment and possession of the land under encroachment out of Gat No.80. Another prayer is for declaration that he is entitled to fetch water from the suit well twice in a week. In para 1B of the plaint, the well was shown to be situated in Gat No.85. The defendants filed the written statement and denied that the well was situated in Gat No.85 and also that the plaintiff had any right to fetch water from the well. The trial commenced. Some evidence was also led by the plaintiff. The plaintiff moved an application Ex.32 on 16.1.2007 under Order VI Rule 17 of C.P.C. for amendment in the plaint. According to him, the well is actually situated in Gat N.81, but due to typographical mistake, it was shown to be in Gat No.85 in the plaint and, therefore, he wanted the amendment. The application was opposed. The trial Court rejected the application. Hence, the present petition. 3 WP-381-10.sxw 3. The leaned Counsel for the petitioner contends that the petitioner has no right or interest in the land Gat No.85 or in the well situated therein. He is concerned and has right to fetch water from the well in land Gat No.81. Due to typographical mistake,in the plaint Gat N.85 was typed. The learned Counsel for the respondents, while opposing the petition, also admitted that the well is situated in Gat No.81 and not Gat No.85. He admits that the defendants had taken specific plea in the written statement that there is no well in Gat No.85 and inspite of that, for about 6 years, no amendment was made and the parties proceeded with the trial the right of plaintiff to fetch water from the well situated in Gat No.85 and, therefore, amendment should not be allowed, particularly when the suit at the fag end of trial. 4. It is settled position of law that amendment in the pleadings under Order VI Rule 17 can be permitted at any stage if it does not change the nature of the suit or does not change the cause of action and does not prejudice the case of the parties. In the present case, it appears that mistake was committed in typing the Gat number in which the well is situated. That mistake was pointed out by the defendants in the written statement. Inspite of that, the concerned Advocate for the plaintiff did not bother to check whether the said well is situated in Gat no.81 or Gat No.85 and after a long period of six years, he felt it necessary to make 4 WP-381-10.sxw amendment. In view of the facts and circumstances, the negligence can be attributed to the Advocate who had drafted the plaint and who did not bother to look into the written statement. At the same time, it is to be seen that if the plaintiff has valuable right of taking water from the well in Gat No.81, merely because of mistake committed by the lawyer or a typographical mistake in the plaint, plaintiff should not suffer. Therefore, in my considered opinion, it would be in the interest of justice to allow the amendment. 5. For the aforesaid reasons, the Petition is allowed. The impugned order is set aside. The amendment application is hereby allowed subject to payment of costs of Rs.5,000/- to the defendants. Costs shall be deposited within four weeks before the trial Court. The amount of Rs.5,000/- deposited with this Court by the petitioner shall be allowed to be withdrawn by him so that he can deposit the same before the trial Court. After cost amount is deposited, the defendants shall be allowed to withdraw the same. (J.H.BHATIA,J.)