1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.69 OF 2009 ... 1. Shri Narayan Pandurang Veer age 65 yrs, occ. Business, r/o. At Post Moha, Tq. Kallamb, Dist. Osmanabad. ...PETITIONER V E R S U S 1- Shri Raghunath Panduang Veer, age 68 yrs, occ. Agriculture, r/o at Post Moha, Tq. Kallamb, Dist. Osmanabad. 2- Shri Baliram Pandurang, age 75 yrs, occ. Agriculture, r/o at Post Mohan, Tq. Kallamb, Dist Osmanabad. 3- Shri Shivaji Bhimrao Veer. Age 70 yrs, occ. Agriculture, r/o at Post Mohan, Tq. Kallamb, Dist Osmanabad. ..RESPONDENTS. Shri. Mukul Kulkarni, Advocate for the petitioner. Shri S.A. Wakure Advocate for R-1. Shri S.T. Ghute, Advocate for respondent No.2 CORAM : B.R. GAVAI, J : DATE : 9th JULY, 2009 PER COURT :- 1. Rule. Rule made forthwith. Heard by consent. 2- By way of present petition, the petitioner challenges the order dated 18.09.2008 vide which the application filed by the present petitioner for filing additional written statement came to be rejected. 3- The respondent No.1 has filed a suit against the petitioner and 2 respondent no.2 claiming for declaration and injunction that he was the owner of the suit land and that he had an exclusive right to use the water from the well and for a decree of permanent injunction restraining the defendants from his right over the water in the well. 4- It appears that initially both the defendants filed a common written statement in which it was stated that the plaintiff so also the defendants are having 1/3rd share each over the water in the well. 5- Subsequently, the present petitioner who is the defendant No.2 had filed an application for filing additional written statement. By way of said written statement, the petitioner wanted to bring on record the fact regarding agreement between him and the plaintiff dated 18.02.2003 wherein according to the petitioner it was agreed that the petitioner and the plaintiff had ½ share each in the water of the well. It was also sought to be placed on record that the expenses for digging said well which was admittedly situated in the land of the plaintiff were borne by the petitioner-defendant No.2. Said application is rejected. Hence, the present petition. 6- Shri Kulkarni, the learned counsel appearing on behalf of the petitioner submits that the learned trial court has erred in rejecting the application. He submits that the courts are required to take liberal view in the matter of amendment and as such the application ought to have been allowed. 7- Shri S.Y. Patil, the learned counsel appearing on behalf of the respondent No.1 – plaintiff submits that though the petitioner could have made an averment regarding the agreement and construction of the well in the original written statement, he has not made such an averment in the original written statement and as such it was not permissible to bring on record such fact at a belated stage. 8- The learned counsel appearing on behalf of respondent No.2 submits that an admission has been given by the petitioner that the plaintiff and defendants No.1 and 2 are each having 1/3rd share in the water of wall and as such by way of the subsequent additional written statement, admission given 3 in favour of the defendant no.1 cannot be withdrawn. 9- It is settled law that the courts have to take liberal view in the grant of amendment. It is further settled that permission to amend written statement of a plaint and a permission to amend written statement stands totally on different footings. The defendants are not only entitled to take alternative stand but also inconsistent stands. It is further settled law that the merits of the matter cannot be gone into at the stage of amendment and that said can only be gone into at the stage of the trial of the suit. No doubt, after amendment to Civil Procedure code, in 2002 the restriction has been put on the power of a court to grant amendment to pleadings. In amendment which is sought to be brought on record after the commencement of trial it is obligatory for a party seeking, amendment to establish a condition, that inspite of exercise of due diligence, said matter could not be brought on record prior to commencement of trial. The term commencement of trial has also been construed i.e framing of issues, leading of evidence. Admittedly, in the present case, issues are framed after application for filing additional written statement came to be rejected. It is also not in dispute that evidence is yet to commence. 10- In that view of the matter, the learned trial court has erred in rejecting the application. The interest of the plaintiff and defendant no.1 could have been very well safeguarded by permitting them to amend their pleadings so as to counter the assertions made by the present petitioner. In that view of the matter rule is made absolute in terms of prayer clause ‘A’. It is further made clear that the plaintiff/respondent No.1 and the defendant No.1 (respondent No.2) would be at liberty to amend their pleadings so as to meet the averments made by the present petitioner in additional written statement. ( B. R. GAVAI ) JUDGE aaa/wp69.09.odt ***