: 1 : 5184-11-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5184 OF 2011 Balu Baban Makar & Ors. .. Petitioners v/s. Sunil Anandrao Ghundare & Ors. .. Respondents ......... Mr. Madhav J. Jamdar for the petitioners ......... CORAM : R.Y.GANOO, J DATE : 8th SEPTEMBER,2011. P.C. : 1. The petitioners filed Special Civil Suit No.2010 of 2008 against the respondents for declaration that they are the owners in respect of the suit premises and that defendants nos. 1 and 2 should handover possession of the same to the petitioners. After filing of the written statement, issues came to be framed and thereafter respondents filed application for amendment of the written statement and in the said application, the respondents claimed that the petitioners have no rights in respect of the property. In the said application in paragraph 3, it is averred that certain documents came in the hands of the respondent at a later point of time. : 2 : 5184-11-wp=.sxw Based on that application, the learned 7th Additional Judge, Small Causes Court, Pune and Joint Civil Judge Senior Division, Pune considered the said application at Exh.41 and by order dated 23rd March, 2011, the said application was granted. 2. According to learned advocate for the petitioners, the amendment should not have been granted on the ground that the evidence is about to commence. He also submitted that on account of the new points raised in the written statement, the respondent nos. 1 and 2 been given up their earlier stand as regards execution of the Will in their favour and that this would cause prejudice to the petitioners. 3. I have perused impugned order dated 23rd March, 2011 as also the record. It is apparent that the amendment is sought in order to put up additional defence and as and by way of alternate defence. The stand taken by the petitioners that on account of amendment, the respondent nos. 1 and 2 have given up the stand as regards the Will cannot be accepted. Learned Judge who will be conducting the trial will have to consider the various averments in the plaint and the averments in the written statement, appreciate the evidence on record and thereafter decide : 3 : 5184-11-wp=.sxw the matter. The amendment which is sought to be brought on record will have to be treated as something by way of alternate defence and it will be necessary for respondent nos. 1 and 2 to place before the Court cogent evidence in support of their defence. 4. The view taken by the learned Judge is right. Merely because the amendment application was filed after framing of the issues, could not be the ground to reject the said application. For the reasons mentioned aforesaid, I am not inclined to accept submissions advanced across the bar on behalf of the petitioners. Petition is, therefore, dismissed at the stage of admission with no order as to costs. (R.Y.GANOO, J.)