:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 275 OF 2008 Mrs. Cicilia Anthony Paul and anr. ...Petitioners Versus Mr.Bhishma Pitamah Maniram ....Respondents ====== Mr.Y.S.Jahgirdar i/by. Mr.S.S. Kanetkar, Adv. for the petitioners. Mr.V.G. Mujumdar Adv. for respondent no.1. Mr.R.S.Alange i/by. Smt.Chandana Salgaonkar, Adv for respondent no.2. CORAM: S.C.DHARMADHIKARI, J. DATED: 31ST JANUARY, 2008. P.C. P.C. P.C. : : : 1. This is a Writ petition challenging an order passed by the Trial court refusing an application for amendment of Written Statement. The application was moved by the petitioners who were original defendant nos.2 and 3 in the suit, namely, Special Civil Suit No. 8 of 2006. :2: :2: :2: 2. The original plaintiff has filed a suit seeking declaration of title, in respect of properties which are more particularly described in the plaint. This relief is coupled with a prayer for cancelling the sale deed executed by the original defendant no.1 in favour of the present petitioners. 3. It appears that there is a continuing litigation as would be apparent from the proposed amendment. The petitioner while filing an application for amendment had categorically stated, that their Written Statement is on record. They have raised various contentions therein. There are various documents filed on record. It is their case that after going through the contents of the documents and judgments rendered in the earlier litigation, which are also on record, certain facts require elaboration and explanation, and that is why for clarifying all these matters, the Written Statement is proposed to be amended. 4. The proposed amendments were moved on 2.11.2007. A reply was filed by the original plaintiff and it was urged that the court has framed issues on 30.6.2007. :3: :3: :3: The matter was placed for recording oral evidence of the plaintiffs. The constituted Attorney of the plaintiffs filed his Affidavit-in-lieu of examination-in-chief on 3.10.2007 alongwith compilation of original documents. The matter was posted on 29.10.2007 and 2.11.2007 for cross-examination of the original plaintiff, and at this stage, the application has been moved. Thus, the petitioners were not diligent in filing their application. 5. At the same time, in para-2 of the Reply a reference is made to the fact that defendant nos.2 and 3 filed their Written Statement on 16.3.2006 and therafter the interim injunction application was argued, so also, allowed. The matter was carried in Appeal to this court and Appeal from order No. 253 of 2007 was dismissed on 5.10.2007. The suit was thereafter made time-bound. 6. The plaintiff then proceeds to reply to the merits of the amendment. 7. The application was thereafter placed before the :4: :4: :4: learned Judge and by an elaborate order, he has rejected the same. The Learned Judge has been influenced greatly by the fact that Issues have been framed, inasmuch as, documents relied upon have been placed before the court. The trial has virtually commenced. The learned Judge does not dispute that the amendment is formal, but, if it is to be carried out, it must be carried out before the commencement of the trial. The party seeking amendment must explain that inspite of due diligence he was unable to carry out the amendment. The Learned judge has relied upon various judgments including that of this court in arriving at a conclusion that the petitioners failed to prove that inspite of due diligence, they could not move the amendment earlier. In my view, all that the petitioner desired was to place on record their own version of the documents, so also the orders passed by the courts in earlier litigation between the same parties. The amendment was merely giving an explanation, elaboration and clarification. Although, it is well settled that in the Written Statement, even inconsistent pleas can be raised. That is not the matter in issue. If the amendments are purely formal, explanatory and :5: :5: :5: clarificatory as of the present nature, nobody was prejudiced by allowing them to be incorporated. Infact, perusal of the same would show that they are in the nature of arguments. That apart, some of this litigations and some of the documents during the course of the earlier litigations have been placed on record of the court recently. In such circumstances and the suit being of the year 2006, so also, beyond framing Issues and filing of Affidavit-in-lieu of examination-in-chief, nothing has transpired, the amendment could have been granted, subject to compensating the plaintiff by payment of costs. 8. Accordingly, the order under challenge is set aside. The application for amendment is allowed subject to the petitioners paying costs quantified at Rs.5,000/- which shall be paid within a period of two weeks from today to the original plaintiff in the trial court. sd/- ******