:1: 3156.11-wp bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3156 OF 2011 Rajeev Ramchandra Nanda ..Petitioner Vs. Ramchandar’s Coaching Institute Pvt. Ltd. ..Respondent Mr.V.R.Dhond with Mr.Khandeparkar i/b. T.N.Tripathi & Co. for Petitioner. Mr.Tushar Dahibawkar i/b. Dahibawkar & Co. for Respondent. CORAM :- B.R.GAVAI,J. DATE :- APRIL 25, 2011 P.C. By way of present petition, the petitioner challenges the order dated 16th March, 2011 vide which the application filed by respondent-defendant for permission to file additional written statement on record came to be allowed. 2. The petitioner has filed a Short Cause Suit No.2089 of 2009 thereby seeking to challenge the legality and validity of certain notices and resolutions of Board of Directors of defendant No.1. There were certain interlocutory proceedings between the parties, which have also reached upto this Court. However, reference to that, is not necessary for adjudication of the present dispute between the parties. 3. The issues were framed on 25th January, 2011. Thereafter on 14th February, 2011 an application below Exh.15-A came to be filed by the present respondent-defendant for permission to take additional written statement on record pertaining to the issue regarding jurisdiction of the learned Trial Court to entertain the suit in question. The said application is allowed. Hence, the present petition. :2: 3156.11-wp 4. Shri Dhond, learned Counsel appearing on behalf of the petitioner submits that the learned Trial Court has grossly erred in allowing the application. The learned Counsel relying on the judgment in the case of Vidyabai & Ors. Vs. Padmalatha & Anr. AIR 2009 SC 1433 submits that framing of issue would amount to commencement of trial and as such, the order impugned allowing the application was itself not permissible. The learned Counsel further relying on the judgment of the Apex Court in the case of P.A.Jayalakshmi Vs. H.Saradha and Ors. (2009) 14 SCC 525 submits that the Apex Court, in the said case, on a conjoint reading of provisions of Order 6 Rule 17 proviso and Order 8 Rule 9, observed, that an application under Order 8 Rule 9 which is filed to obviate the bar created under the provisions of Order 6 Rule 17 would not be tenable. 5. The learned Counsel further relying on the judgment of the Division Bench of this Court n the case of Chintaman Sukhdeo Kaklij & Ors. Vs. Shivaji Bhausaheb Gadhe & Ors. 2004(5) Bom.C.R.573, submits that an application under Order 8 Rule 9 at such a belated stage is not permissible. 6. Mr.Tushar Dahibavkar, the learned Counsel appearing on behalf of the respondent, vehemently opposed the petition and submits, that the learned Trial Court has exercised its jurisdiction in a correct manner and therefore, no interference is warranted. 7. Admittedly, the respondent-defendant herein, in order to raise the grounds which are sought to be raised by way of the application which is allowed, had two avenues available to him. Either an application under Order 6 Rule 17 for amendment of the written statement could have been moved or an application under Order 8 Rule 9 for filing subsequent pleadings could be moved. It can thus be seen, that the order impugned could be referred to the jurisdiction vested in the learned Trial Court under both the provisions. :3: 3156.11-wp 8. Admittedly, in the present suit, the evidence in lieu of examination in chief is yet to be filed by the plaintiff. Admittedly, only issues are framed. In so far as the reliance placed by the learned Counsel for the Petitioner on the judgment of the Vidyabai (Supra) is concerned, in my view the said reliance is wholly misplaced. The ratio of what has been held by the Apex Court can be found from paragraph No.8 of the said judgment. 8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to ‘commencement of proceeding’. (Emphasis supplied) 9. It can thus clearly be seen, that the Apex Court, in unequivocal terms in the said case, has held that filing of the affidavit in lieu of examination in chief of the witness would amount to commencement of the proceeding. In the case of Vidyabai (Supra) an application which was filed for amendment was admittedly filed after the parties had filed their respective affidavits by way of affidavits and the date had been fixed for cross-examination of the witness. The application for amendment came to be rejected by the Trial Court in view of the provisions of Order 6 Rule 17, which prohibits entertaining such an application after the commencement of the trial. The High Court reversed the order and allowed the application. In this premise, their Lordships of the Apex Court held, that the High Court had erred in allowing the application, inasmuch as such an application was barred in view of the jurisdictional fact as envisaged under the provisions of Order 6 Rule 17 of the Code of Civil Procedure. :4: 3156.11-wp 10. In the present case, admittedly, none of the parties have filed affidavit in lieu of examination in chief. 11. Even in the case of P.A.Jayalakshmi (supra), the application was admittedly filed after the evidence was recorded and trial had commenced. The same is not the case here. In that view of the matter, the observations made therein would be of no assistance to the present matter. 12. When the application of the respondent-defendant was tenable under Order 6 Rule 17 of the CPC, as the trial was yet to commence, no error can be noticed in the order passed by the learned Trial Court. By now, it is settled principle of law that the Courts are required to take liberal view in the matter of grant of amendments, the only rider is in view of Order VI, proviso to Rule 17 of the Code of Civil Procedure. It is further settled law that the Courts are required to be more liberal in so far as amendment to the written statement is concerned. 13. In that view of the matter, it cannot be said that the jurisdiction, which is exercised by the Trial Court has been exercised in perverse manner. No perversity is noticed in the impugned order warranting interference in the extra ordinary jurisdiction under Article 227 of the Constitution of India. The petition is without any merit, as such it is dismissed. (B.R.GAVAI, J.)