1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Writ Petition No. 2275 of 2008 (Shashikumar Purushottamdas Mohata Vs. Smt. Gangabai wd/o Gopaldasji Mohta & ors.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. R.R. Srivastava, Adv. For the petitioner. Mr. A.S. Jaiswal, Adv. For R-1. CORAM : Smt. Vasanti A. Naik, J. DATE : 12 th December, 2008 By the order dated 22/4/2008, the 5th Joint Civil Judge, Sr. Dn., Nagpur, had rejected the application filed by the petitioner for amendment of the written statement. This petition impugns the order dated 22/4/2008. The petitioner is the original defendant no.2(b). A suit was instituted by the plaintiff for partition and separate possession of the suit property. Purushottamdas, the father of the petitioner, who was arrayed as defendant no.2 to the suit, died during the pendency of the suit and the petitioner was brought on record as a legal representative of deceased respondent no.2, along with the other 2 legal heirs. After the substitution of the legal heirs of deceased respondent no.2 on record, a pursis was filed on behalf of the legal heirs of deceased respondent no.2, expressing their intention to adopt the written statement filed by the respondent no.2. Thereafter, an application Exh. 107 was filed by the petitioner for permission to file a separate written statement. Said application was, however, dismissed on the ground that the petitioner had already filed a pursis for adopting the written statement filed by deceased Purushottam. The petitioner did not challenge the order of rejection of the application for filing a separate written statement. After the evidence of the plaintiff and his witnesses was closed, and the defendants had tendered their evidence on affidavit and the matter was listed for further oral evidence of the petitioner, the petitioner moved an application for amendment of the written statement under the provisions of Order VI Rule 17 read with Order VIII Rule 9 of the Code of Civil Procedure. By the proposed amendment, the petitioner desired to plead that no partition deed was 3 executed in the year 1959, the suit was barred by limitation and partial partition was not permissible in law as the plaintiff had not included all the joint family properties in the suit and that the petitioner had an independent right in the suit property. The application was rejected by the trial Court by the order dated 22/4/2008. Shri Srivastava, the learned counsel for the petitioner, submitted that the trial Court was not justified in rejecting the application on the ground that it changes the nature of the defence and the said application was filed belatedly when the matter was fixed for the cross-examination of the plaintiff. The learned counsel for the petitioner relied on the decision of the Hon'ble Supreme Court in the case of Usha Balasaheb Swami & ors. Vs. Kiran Appaso Swami & ors. reported in 2008(1) CLJ 168, to canvass that a legal heir has an independent right to defend the suit and, therefore, he should be permitted to file an additional written statement. The learned counsel for the petitioner then submitted that the Court should be liberal in considering the 4 application for amendment of the written statement and the amendment application should not be disallowed merely because some application was rejected at an earlier point of time. The learned counsel for the petitioner relied on the decision of the Hon'ble Supreme Court in the case of Sumtibai & ors. Vs. Paras Finance Co. reported in AIR 2007 Supreme Court 3166, to substantiate his submission. The learned counsel for the petitioner then relied on the decision in the case of Andhra Bank Vs. A.B.N . Amro Bank N.V. & ors. reported in 2008(1) CLJ 293, to canvass that an amendment application should not be rejected mainly on the ground of delay, if it is found that the amendment sought to be made is necessary for deciding the actual controversy or the lis between the parties. Shri Anand Jaiswal, the learned counsel for the respondents/plaintiffs, supported the impugned order passed by the trial Court on 22/4/2008, and submitted that the application was rightly rejected as the Court found that the application for amendment was deliberately filed by the 5 petitioner for the purpose of protracting the proceedings, specially his own evidence. The learned counsel for the respondents then submitted that this Court had directed the trial Court to decide the suit positively within a period of six months and the record showed that the matter was adjourned from time to time at the behest of the petitioner when the same was fixed for recording of the evidence of the petitioner. It is submitted on behalf of the respondents that the legal representatives of a defendant are entitled to take all defences available to the original defendant, but they cannot be permitted to raise a plea which is contrary to the plea raised by the original defendant. In the instant case, according to the learned counsel for the respondents, the petitioner desired to raise a plea which was contrary to the plea raised by the original defendant and, therefore, the trial Court was justified in rejecting the application filed by the petitioner. The learned counsel for the respondents relied on the decision in the case of Mr Manguesh Rajaram Wagle & anr. Vs. Mr. Suresh D. Naik & ors. reported in 6 2008(4) All MR 873, to substantiate his submission. It is submitted on behalf of the respondents that the application filed by the petitioner for filing a written statement was rejected by the trial Court and in this background, the trial Court rightly held that the subsequently filed amendment application could not have been allowed as the petitioner desired to by-pass the earlier order rejecting his prayer for filing a written statement. The learned counsel for the respondents submitted that this Court should not exercise the jurisdiction under Article 227 of the Constitution of India, to interfere with the impugned order dated 22/4/2008 which is passed by adhering to the settled principles of law laid down from time to time. The learned counsel for the respondents sought for the dismissal of the writ petition. I have considered the submissions made on behalf of the parties and have also perused the impugned order dated 22/4/2008. It is necessary to note that the original defendant no.2 had filed his written statement and had admitted the execution of the partition 7 deed of the year 1959. In this background, by the proposed amendment, the petitioner could not have denied the execution of the partial partition on 14/2/1959. This clearly changed the nature of the defence. It is a settled position of law that the amendment which changes the nature of the defence cannot be granted. Regarding the other pleas in the proposed amendment, the Court found that these pleas were an afterthought and the amendment application was filed with an intention to protract the trial which the High Court had ordered to be decided within a period of six months. The Court rightly considered the fact that the earlier application filed by the petitioner for permission to file an additional written statement was dismissed by the trial Cort and that order had attained finality. In this background, the Court found that the present application was filed by the petitioner with a view to delay the matter and specially his evidence as the matter was fixed for tendering of the oral evidence of the petitioner and some of the defendants, and the matter was adjourned from time to time, at the 8 behest of the petitioner for one reason or the other. The fact about the non-inclusion of some of the other properties of the joint family was already raised in the written statement and, therefore, the proposed amendment in that regard was merely a reiteration of the pleadings which already existed in the written statement. It is, no doubt, true that an amendment application cannot be rejected solely on the ground of gross delay and it is necessary for the Court to allow the amendment application if the Court finds that the pleadings in the proposed amendment are necessary for effectively deciding the controversy between the parties. Unfortunately for the petitioner that was not the case here. The impugned order dated 22/4/2008 is just and proper and suffers from no error much less a jurisdictional error so as to interfere with the same in exercise of a jurisdiction under Article 227 of the Constitution of India. The writ petition is, therefore, dismissed with no order as to costs. JUDGE RMP