1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2796 OF 2009 Ganesh Uttam Baathe .. Petitioner Versus Ravindra Namdeo Baathe .. Respondent Mr.Sathyam Acharya for petitioner Mr.Mahesh Patil i/b. Makarand Nalawade for respondent. CORAM : S.C.DHARMADHIKARI, J. DATE : 20th April 2009. P.C. . Rule. Respondent waives service. By consent, Rule made returnable forthwith. Heard Counsel for both sides. 2. The order refusing amendment to the written statement is under challenge in this petition. 3. Petitioner is the original defendant in 2 Special Civil Suit No.796 of 2007 on the file of learned Joint Civil Judge, Senior Division and 6th Additional Judge, Small Causes Court, Pune. Petitioner applied for amendment to his written statement which was already filed. Amendments are to incorporate further particulars to substantiate the pleas raised in para 19 of the W.S. Para 19 of the W.S. sets out true position, according to petitioner - defendant. 4. An application made to amend the W.S. on 6th January 2009 was opposed principally on the ground that the suit is filed in the year 2007. Thereafter, the W.S. has also been filed but there are no reasons assigned as to why the elaboration of factual aspects set out has to be done now. 5. The Trial Judge has pointed out that the application for amendment to the W.S. is made after issues are framed and the plaintiff has 3 filed his affidavit in lieu of examination in chief. The matter was placed for cross examination of plaintiff and at that stage the application was moved. 6. Learned Judge was of the opinion that the Trial has commenced and, therefore, the application for amending W.S. cannot be granted. Secondly, he has applied the proviso to Order VI Rule 17 and stated that despite due diligence, if the amendment could not have been carried out, that fact should have been specifically mentioned in the application but the reasons in that behalf are not at all convincing and show lack of diligence on the part of petitioner - defendant. 7. I do not see how both aspects were such as would disentitle the petitioner from seeking amendment to the W.S. in this case. The learned Judge has found substance in the pleas raised by the defendant- petitioner that amendment in this 4 case is to the W.S. Amendment is only to insert some particulars soas to substantiate the pleas. But these particulars were not available earlier. Similarly, this is not a case where any admission of the defendant is sought to be withdrawn. Yet, this application is dismissed for some strange reasons. 8. After having perused this order with the assistance of the Counsel for both sides, I am of the view that the Court below has committed an error apparent on the face of record in refusing amendment. The aspect of amendment to the W.S. has now been amply clarified. The Court has to apply principles which are some what distinct. It is not the case of plaintiff that this application was not tenable in the light of these principles. Further, if there was some delay, the Court below could have imposed appropriate costs to compensate the respondent - plaintiff for the same. However, beyond filing of 5 examination in chief, nothing has been done. In these circumstances, the Court below could have adopted liberal approach and granted this amendment. 9. In the light of the fact that no prejudice is being caused to the respondent plaintiff, so also, applying settled principles to this case, I am of the view that the order under challenge cannot be sustained. It is accordingly set aside. Rule is made absolute in terms of prayer clause (a). However, the petitioner - defendant to pay costs quantified at Rs.1,500/- payable to respondent - plaintiff within two weeks from the date of receipt of copy of this order. If compliance is made, W.S. be permitted to be amended and, thereafter, petitioner - defendant should cooperate in early disposal of the suit by not seeking unnecessary adjournments. 6 (S.C.Dharmadhikari, J)