{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4918 OF 2008 Ganapati Baburao Tandale R/o Vanjarwadi, Tq- & Dist-Beed PETITIONER VERSUS 1. Subhash Hukumrao Kute R/o Vanjarwadi, Tq & Dist-Beed 2. Parmeshwar Sudam Kute R/o Vanjarwadi, Tq & Dist-Beed RESPONDENTS ....... Mr.G.K.Thigle, Advocate for petitioner Mr.K.D.Bade Patil, Advocate for respondents No.1 and 2 ....... [CORAM : A.V.POTDAR, J.] DATE : 3rd July 2009 ORAL JUDGMENT : 1. By the present writ petition, filed under Article 227 of the Constitution of India, the petitioner, original plaintiff, has challenged the order dated 09.07.2008 passed by Civil Judge, Senior Division, Beed below Exhibit-96 in RCS No.256/2005. 2. Rule. Rule made returnable forthwith. By consent of {2} the parties heard finally at the stage of admission itself. 3. Factual matrix, which gave rise for filing present writ petition can be summarized as under- The petitioner herein has filed a suit (RCS No.256/2005) for perpetual injunction against respondents in the Court of Civil Judge, Senior Division, Beed. Description of the suit property is mentioned in plaint para 6 and sketch of the said property is also annexed with the plaint, though not at the time of filing the suit, yet latter on by way of amendment on 29.03.2006. It appears that the defendants appeared and contested the suit by filing written statement at Exhibit-21. It appears that the first part of the written statement is of denial while the second part, styled as additional statement, deals with explanation to the pleadings and description of property in their possession. It also appears that after the issues were framed, the parties were directed to lead evidence. Evidence of plaintiff is over and three witnesses are examined on behalf of defendants. Thereafter, an application came to be moved on behalf of defendants at Exhibit-96, for carrying out amendment in the written statement as per para 6 of the application Exhibit-96. After hearing both the parties, the learned trial court, vide order dated 09.07.2008 passed below Exhibit-96, pleased to allow the application, the said order is under challenge in this petition. 4. With the assistance of learned counsel for the parties, {3} perused the record annexed with the writ petition. It is to be noted that the suit is filed in the year 2005 which itslef indicates that the provisions of amendment of the Civil Procedure Code effected in the year 2002 are applicable to the pleadings of the parties. Under the amended provisions of Civil Procedure Code, liberal view in respect of amendment to the pleadings under Order 6 Rule 17 of the Civil Procedure Code, is taken away, however at the same time, in view of the recent judgment of Apex Court, even after commencement of trial i.e. after parties have opened their defense, in exceptional cases, if the party satisfies the court then the pleadings are allowed to be amended under Order 6 Rule 17 of the Civil Procedure Code, inspite of rigid provisions of Civil Procedure Code after amendment in the year 2002. 5. In the present case, the amendment allowed by the trial court is contested mainly on three grounds - a) The proposed amendment is at belated stage. b) Already evidence of the plaintiff is over and he is thoroughly cross-examined c) If the amendment is allowed then the admissions given by defendant No.1, in the course of cross examination will be wiped out. 6. As against this, learned counsel appearing for respondents relying on recent judgment of the Single Bench of this {4} Court, reported in 2007 (1) Mh.L.J. 331 in the matter of Bharat Petroleum Corporation Limited V/s Precious Finance Investments Pvt.Ltd.,”, submits that the amendment of pleadings in written statement can not be tested with the same yardstick, which is applicable to amendment of pleadings to the plaint, as required under Order 6 Rule 17 of the Civil Procedure Code. No doubt, para 33 of the said judgment provides 21 guidelines, but at the same time, it is also observed in the said 21 guidelines that if the amendment is introduced to written statement at belated stage, then it is for the defendants to satisfy the court in respect of necessity of the proposed amendment. 7. It is clear that the plaint is filed on 03.08.2005, to which written statement is filed on 17.10.2005 and thereafter the sketch annexed to the plaint was amended and replaced by virtue of amendment below Exhibit-39. If the sketch is changed, it is but natural that an opportunity might have been given to the defendants to amend the pleadings in the written statement. Admittedly, this opportunity is not availed by the defendants as it was an opportunity first in time. Secondly, the description of the property given by the defendants in para 10 and 11 of the original written statement was based on the documents of title on which they have acquired the title of possession of the property. In this sequence and scenario it is to be considered that whether the grounds mentioned in para 3 of the proposed amendment satisfy the test as given in the judgment cited across the bar while {5} carrying out the proposed amendment. It is incumbent on the party to satisfy the court that for certain reasons, the amendment is necessary. In para 3 of the application, it is mentioned that the defendants have shown incorrect boundaries of the property in their possession and inadvertently the mistake occurred when the pleadings were filed in the court. It is also mentioned that after execution of the sale deed the boundaries of the property were changed. However the application for amendment is silent about the fact that when this mistake was realized by the defendants. The factum that possession was changed after the parties were put in possession after the execution of the sale deed is also silent. In the premise, the reasons for the proposed amendment are vague in nature and not specific which can satisfy the court that such an amendment is essential to meet the ends of justice. 8. In the impugned order it is observed that “after perusal of application for amendment and contents thereof, prima facie no change would be brought in defense, on the contrary it would help adjudication of defendants’ right. Since the suit is not yet heard finally, I feel the application deserves to be allowed.” The trial court does not consider the aim and object of the amendment introduced in the Civil Procedure Code as to why the provisions are made so rigid and how the protracting litigations are curtailed. The courts can allow amendment application even at belated stage subject to subjective satisfaction of the Court. However, on reading the entire order I do not find anywhere what was the subjective satisfaction of {6} the trial court on the basis of which the application is allowed. Thus, the order passed by the court below is against the provisions of law and requires interference. Hence, it is necessary to quash and set aside. Accordingly, the order passed below Exhibit-96 is hereby quashed and set aside. 9. 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/wp4918-08