{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7542 OF 2008 Shaikh Nabi s/o Kadumiya R/o Village Brahmangaon Pirache, Tq-Paithan, Dist-Aurangabad PETITIONER VERSUS 1. Sayed Nabbu s/o Sayed Ahmed R/o Village Brahmangaon Pirache, Tq-Paithan, Dist-Aurangabad 2. Sayed Babu s/o Sayed Ahmed R/o Village Brahmangaon Pirache, Tq-Paithan, Dist-Aurangabad 3. Zubedabai w/o Sarwar Khan R/o Village Brahmangaon Pirache, Tq-Paithan, Dist-Aurangabad RESPONDENTS ....... Mr.M.B.W.Khan, Advocate for petitioner Mr.N.T.Tribhuwan, Advocate for respondents No.1 to 3 ....... [CORAM : A.V.POTDAR, J.] DATE : 17th June 2009 ORAL JUDGMENT: 1. By the present petition, filed under Article 227 of the {2} Constitution of India, the petitioner, who is the original defendant before the trial court has challenged the order dated 18.11.2008 passed below Exhibit-45 in RCS No.243/2000 by the Civil Judge, Junior Division, Paithan. 2. Rule. Rule made returnable forthwith. By the consent of the parties heard finally at the stage of admission. 3. With the assistance of learned counsel for the parties, perused the record. It appears that the respondents have filed suit against the present petitioner for possession, more specifically stated in plaint para 8. The suit was filed on 26.02.2000. After service of summons, the petitioner and other defendants appeared in the suit and filed their written statement on 02.02.2001. It further appears that thereafter issues were framed. Thereafter, after a gap of 7 years, affidavit of examination in chief of the witness of the plaintiffs is filed. At this stage, an application came to be moved vide Exhibit-45 on 08.09.2008 on behalf of the petitioner/defendant for amendment to the written statement. The petitioner/defendant wants to raise the plea of non joinder of necessary parties, the suit is barred by limitation and lastly he became owner by adverse possession. 4. It further appears that after hearing the parties, the amendment application came to be rejected by the trial court vide order dated 18.11.2008 and the same is impugned in this petition. {3} 5. It appears from the observations in paragraphs No.5 and 6 of the order that the trial court is much impressed by the arguments submitted by the respondents / plaintiffs that there is delay in submitting application for carrying out amendment in the written statement and now the trial is open and after opening of the trial amendment cannot be allowed. 6. During the course of submissions across the bar, reliance is placed by learned advocate appearing for the respondent on the ruling reported in 2009 (1) ALL MR 471 in the matter of Vidyabai V/s Padmalatha. Considering the nature and scope of the amendment to be allowed in the written statement, the parameters and criteria or yardstick, which applied for amendment to be carried out in the plaint as well as the amendment in the written statement the same criteria / yardstick is not applicable. It is to be considered that so far as the proposed amendment to the written statement vide Exhibit-45 is on the law point about the necessary parties to be sued, law of limitation and the petitioner became owner by adverse possession, which will not come under this clause of point of law. The fact remains to be considered is that if the point of law requires to be pleaded or not as there is controversy that though point of law can be urged during the course of arguments still some courts insist that in absence of pleadings they will not consider and will not frame issue to that effect. For this purpose, though the amendment to be {4} carried out at belated stage, apart from citations it is held in catena of judgments by the Apex Court that merely because of delay in preferring application for amendment in written statement the same cannot be thrown away, if the proposed amendment is necessary to meet out the ends of justice. It is observed by the Apex Court in para 14 of the judgment cited by the advocate for the respondent that - “It is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6, Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact is envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.” In other words, the jurisdiction lies with the court to consider the factum whether it is necessary to allow the amendment to the pleadings to meet the ends of justice. However, the amendment to the written statement so far as non joinder of necessary parties and whether the suit is barred by law of limitation are pure questions of law and for which even if there is delay such amendment has to be allowed. So far as point raised in respect of the defendant became owner by adverse possession for which yet the cross examination of the plaintiff is to be started. In the premise, no prejudice would cause to the respondents/plaintiffs, in case the amendment is allowed. Hence, {5} the order passed by the trial court ought to be quashed and set aside. It is accordingly quashed and set aside. The amendment application dated 18.11.2008 is hereby allowed. Rule is thus made absolute in the terms indicated above. Writ petition stands disposed of with no order as to costs. [A.V.POTDAR, J.] drp/wp7542-08