: 1 : 4588-11-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4588 OF 2011 Laxman Vitthal Kadam .. Petitioner v/s. Dadaso Mahadeo Kadam & Ors. .. Respondents ......... Mr. C.G. Gavnekar for the petitioner Mr. Amit Borkar for respondent no.1 ......... CORAM : R.Y.GANOO, J DATE : 16th SEPTEMBER,2011. P.C. : 1. Rule. Rule made returnable forthwith. Learned advocate Mr. Borkar waived service on behalf of respondent no.1. By consent, petition is taken up for hearing. 2. The petitioner herein filed R.C. Suit No.158 of 2000 in the Court of learned Civil Judge, Senior Division, Kolhapur against Madan M. Kadam, Dadaso M. Kadam and other Governmental Authorities. Said Dadaso Kadam is respondent no.1 in this petition. 3. Learned Civil Judge, Senior Division, Kolhapur tried the suit and a : 2 : 4588-11-wp=.sxw decreed came to be passed in favour of the petitioner by Judgment and Decree dated 16th March, 2007. Against this Judgment and Decree, present respondent no.1 filed Regular Civil Appeal No.160 of 2007 in the Court of learned District Judge, Kolhapur. During the pendency of the said Appeal, respondent no.1 filed an application for amendment of the written statement by filing application below Exh.18. That application was granted by order dated 7th February, 2011. Being aggrieved by this order passed by learned Principal District Judge, Kolhapur dated 7th February, 2011, this petition is filed. 4. I have heard learned advocate on both sides. The copy of the written statement is annexed to this petition and a perusal thereof goes to show that the written statement cum counter claim purported to have been filed on behalf of the present petitioner who was defendant no.2 in the Trial Court as well as Mr. Madan M. Kadam was signed and verified by respondent no.1 only hence the said written statement cum counter claim will have to be treated as one which is filed by the present respondent no. 1. Learned advocate Mr. Borkar admitted that other defendant i.e. Madan Kadam, original defendant no.1 had not filed any written statement. : 3 : 4588-11-wp=.sxw 5. Before this Court, it was sought to be argued by learned advocate Mr. Gavnekar that the facts which are now being pleaded and sought to be added in the amendment application at the stage of hearing of the Appeal were well within the knowledge of the respondent no.1 prior to the disposal of the suit and, therefore, there was ample opportunity for respondent no.1 to amend his written statement during the pendency of the suit. According to him, learned District Judge, Kolhapur erred in granting the amendment and to that extent, the petitioner has suffered prejudice. Learned advocate Mr. Borkar tried to support the impugned order. 6. Once it is accepted that the facts which are sought to be added in the application for amendment of the original written statement were known to the respondent no.1 prior to the disposal of the suit, there is no reason for granting the amendment, which is now sought when the whole suit is decided in favour of the petitioner. Learned advocate Mr. Borkar in the course of his submission had stated that respondent no.1 has lead evidence in regard to certain factual aspects, which were sought to be brought on record by way of amendment application. If this be so, learned Principal District Judge, Kolhapur or any such District Judge : 4 : 4588-11-wp=.sxw before whom this Regular Civil Appeal No.160 of 2007 would come up for hearing, will have to consider the entire evidence on record and decide the appeal on merits. Once, this course is adopted, respondent no.1 would be able to advance his submissions and no prejudice could be caused to him. The view taken by the learned Principal Judge that the amendment should be granted, in my view, is wrong because if respondent no.1 knew certain facts, he should have been vigilant and he should have brought these fact on record at the time of filing of main written statement or make application for amendment of the written statement during the pendency of suit. For the reasons mentioned above, petition is disposed of by passing following order. ORDER (i) Order dated 7th February, 2011 passed by learned Principal District Judge, Kolhapur below application at Exh.18 is set aside. (ii) Application at Exh.18 is rejected. (iii) Learned Principal District Judge, Kolhapur or any other District Judge, who shall be hearing R.C. Appeal No.160 of 2007 shall : 5 : 4588-11-wp=.sxw consider the entire record including the evidence and pass appropriate order in the Civil Appeal. There shall be no order as to costs. (R.Y.GANOO, J.)