1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6775 OF 2009 Sou. Savita Shashikant Mate. .. Petitioner Vs Shri Suresh M. Gurjar & Ors. .. Respondents -- Shri Sanjay Kshirsagar for the Petitioner. Shri D.M. Gupte for the Respondent No.1. -- CORAM : A.S. OKA, J DATE : 29TH JANUARY, 2010. P.C. . Heard learned counsel appearing for the Petitioner and the learned counsel appearing for the Respondents. 2. By this Writ Petition under Article 227 of the Constitution of India, a challenge is to an order passed by the trial Court on an application made by the Petitioner for amendment of a Written Statement. The Petitioner is the 8th Defendant in a suit filed by the 1st Respondent. The suit is filed for a declaration that the Plaintiff and the 2nd Defendant are entitled to the undivided share in the property subject matter of the dispute which is Plot No.28, more particularly described in Paragraph 1 of the Plaint. The prayer is also made by the 1st Respondent for a partition and separate possession of his 1/7th share. 3. In the suit, it is stated that the 7th and the 8th Defendants deceived the 1st Defendant and obtained a Sale Deed dated 3rd May, 1991 from the 1st Defendant. In essence, the contention is that the said Sale Deed 2 get executed by the 7th and the 8th Defendants from the 1st Defendant without the consent of the 1st Respondent and other Defendants is not binding on them. A Written Statement was filed by the Petitioner in which it was contended that the 1st Defendant was the owner of the suit plot. 4. An application for amendment of the Written Statement was made by the Petitioner. By the application, the Petitioner sought permission to add three paragraphs in the Written Statement. In Paragraph No.14A, the Petitioner contended that the Plaintiff and the other Defendants by their acts, omissions and representationd acquiesced the fact that the 1st Defendant was the sole owner of the suit property and on the basis of the acts of acquiesce, the Petitioner has paid huge amount to the 1st Defendant. In the proposed paragraph 14B, it was sought to be contended that the Sale Deed has been executed by the 1st Defendant at the instance of the Plaintiff and the other Defendants. In Paragraph 14C, it was sought to be contended that the 1st Defendant acted as per the instructions of the 1st Respondent/Plaintiff and purchased a shop premises from consideration received from the Petitioner. It is contended that the 1st Respondent was enjoying the fruits of consideration paid by the Petitioner. It was contended that the said shop was sold by the 1st Defendant in the year 2001 to which objection was not raised by any of the parties to the suit. 5. The learned trial Judge rejected the application for amendment of the Written Statement on the ground that the same has been belatedly filed. The hearing of the suit has already been expedited. 3 6. The learned counsel appearing for the Petitioner submitted that the proposed amendment does not change the nature of the suit and the same is not inconsistent with the defence taken earlier. He submitted that the amendment ought to have been liberally allowed. 7. Learned counsel appearing for the 1st Respondent submitted that this Court had expedited the hearing of the suit and outer limit fixed by this Court for conclusion of trial has already been over. Considering the issues framed, he submitted that the entire burden of proof lies on the 1st Respondent and he will have to prove that the Sale Deed dated 3rd May, 1991 is obtained by the Petitioner by deceiving the 1st Defendant. He submitted that the application has been moved after an affidavit in lieu of examination- in-chief is filed by the 1st Respondent and if the application is allowed, the 1st Respondent will suffer serious prejudice. 9. I have carefully considered the submissions. The constraints of the amended Rule 17 of Order VI of the Code of Civil Procedure, 1908 will not apply to the present application as the suit has been filed prior to 1st July, 2002. In the Written Statement originally filed by the Petitioner, it is contended that the 1st Defendant was the owner of the suit plot. It is contended that after the demise of the original owner, the membership of the society was allotted to the 1st Defendent. Now, by the amendment, firstly it is sought to be contended that by their conduct, the Plaintiff and the other Defendants have acquiesced the fact that the 1st Defendant was the owner of 4 the suit plot and that is how the huge amount has been paid by the Petitioner to the 1st Defendant. The paragraphs sought to be introduced do not make out a case which is inconsistent with the case already made out in the Written Statement. Moreover, no attempt has been made to withdraw the admissions in the earlier Written Statement. 10. Prior to the amendment of Rule 17 of Order VI of the said Code, the settled law was that the Court has to be liberal in allowing the amendment of the pleadings and the amendment can be allowed at any stage of the proceedings. 11. It is true that there is a delay in making an application for amendment. However, that is not the only ground on which the application can be rejected. The Petitioner can be directed to compensate the 1st Respondent by awarding appropriate costs. Moreover, the 1st Respondent can be granted permission to file a further affidavit in lieu of examination-in- chief. 12. It must be stated that as per the order dated 21st August, 2009, the Petitioner has deposited a sum of Rs.7,500/- towards costs payable to the 1st Respondent. 13. Hence, the Petition must succeed. I pass following order. (a) The impugned order dated 24th November, 2008 is 5 quashed and set aside. (b) The Application at Exhibit-108 is allowed. (c) Amendment to be carried out within two weeks from the date on which the writ of this order is received by the trial Court. (d) It will be open for the 1st Respondent to file further affidavit in lieu of examination-in-chief. It will be open for the 1st Respondent to withdraw the amount of costs deposited by the Petitioner. (e) All contentions of the parties on merits are kept open. (f) The Writ Petition is allowed in above terms. (g) The suit shall be decided on or before 31st August, 2010. JUDGE ash