1 wp9803.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 9803 of 2010 Gajanan Sadashiv Satpute & anr. ... Petitioners v/s. Jaypal Bhimappa Parmaj & ors. ... Respondents Mr. P.D. Dalvi for the petitioners. Mr. V.B. Rajure for respondent no. 1. CORAM:- B.R. GAVAI, J DATED :- APRIL 15, 2011. P.C. Rule. Rule, made returnable forthwith. 2. Heard. By consent taken up for final hearing. 3. By way of present petition, the petitioner challenges the order dated 17th September, 2010 vide which the learned trial Judge has though partly allowed the application below exhibit 55 for amendment of written- statement, has rejected the application insofar as paragraph 34 and 34(a) is concerned. 2 wp9803.10.sxw 4. The respondent-plaintiff has filed the suit for partition. The suit is resisted by the present petitioners by filing the written-statement. Subsequently, an application for amendment to the written-statement came to be filed. Insofar as amendment in paragraph 8 is concerned, the same is allowed by the learned trial Court on the ground that it was a typographical mistake. However, the amendment insofar as in paragraph 34 and 34(a) is concerned, the same is rejected. Hence, the present petition. 5. Shri Dalvi, learned Counsel submits that trial was yet to commence and as such the learned trial Court ought to have allowed the application in entirety. 6. Shri Rajure, learned Counsel vehemently opposes the petition. He submits that by way of amendment which is sought to be incorporated, the petitioner-defendants are trying to make out an entirely new case. He submits that though the partition which is sought by the plaintiff is only with regard to house property, the petitioners are now trying to bring the agriculture properties. 7. Perusal of paragraph 34 and 34(a) would reveal that the same pertain 3 wp9803.10.sxw to some of the transaction of the property which according to the defendants is made by a member of the family. 8. It appears to be the defence of the defendants that the partition has already been done prior to filing of suit. It has been averred that the transaction which was sought to be brought on record would fortify the case of the defendants that the partition had already been done. The defendants have also taken alternative stand that in the event, if it is found that partition is not already been done, then some of the properties mentioned in the said paragraph would be required to be shown to the share of some of the defendants. 9. It is a settled law that the Courts have to take a liberal view in the matter of amendment. Insofar as written-statements are concerned, the Courts are required to take a more liberal view. It is also a settled principle of law that defendant can also take contradictory as well as inconsistent stand. It is further to be noted that it is not a reasoning of the learned trial Court that the amendment is hit by provisions of Order 6 Rule 17 of the CPC. The learned trial Court while considering the application has gone into merits of the matter. It is equally settled that while considering an 4 wp9803.10.sxw application for amendment the Courts are not required to go into the merits of the matter. In that view of the matter, the impugned order is not sustainable in law. 10. Insofar as prejudice that is caused to the respondent-plaintiff is concerned, the same can be compensated by saddling cost. In that view of the matter, rule is made absolute in terms of prayer clause (a). However, the same shall be subject to cost which are quantified at Rs. 7,500/-. The cost be deposited by the petitioner in the trial Court within a period of four weeks from today. On deposit of cost, respondent-plaintiff would be at liberty to withdraw the same. The deposit of cost in the aforesaid period is a condition precedent for allowing the petition. On failure to deposit the cost within the period prescribed, the petition shall stand dismissed without further reference to the Court. (B.R. GAVAI, J)