1 WP 5344/10 abs FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5344 OF 2010 ------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders ------------------------------------------------------------------------------------------------------------------ Mr. T.D. Deshmukh for the petitioner. CORAM : D.G. KARNIK, J DATE : 26th July 2010. P.C. : 1. Heard. 2. By this petition, the petitioner challenges the order dated 18 November 2009 passed by the learned District Judge-12, Pune, rejecting the petitioner’s application for amendment of the written statement. 3. The petitioner is a tenant and has suffered a decree for possession. He filed an appeal challenging the decree in which he applied for amendment of the written 2 WP 5344/10 statement. The lower appellate court has rejected the application on two grounds. Firstly, it has held that the application is barred by proviso to Order 6 Rule 17 of the Code of Civil Procedure (for short “the Code”) and secondly, it has also held that the proposed amendment changes the nature of the defence and completely alters the defence which cannot be allowed. 4. Order 6 Rule 17 of the Code provides that no application for amendment shall be allowed after the commencement of the trial unless the court is satisfied that the petitioner could not have brought out the facts despite his due diligence. There is nothing on record to show that the facts pleaded in the proposed amendment, except perhaps one which relates to an alleged subsequent event, could not have been pleaded initially. In the circumstances, the learned District Judge committed no error in rejecting that portion of the amendment. As 3 WP 5344/10 regards the portion which the petitioner claims to be a subsequent event, though the petitioner has stated that it happened during the pendency of the suit, he has not stated when the premises were reconstructed, i.e. whether before or after the commencement of the trial. As such, the petitioner has also not proved that the subsequent event took place after the commencement of the trial and as such he could not have made a pleading or amended the pleading regarding it before the commencement of the trial. 5. Perusal of the amendment shows that it is substantial in nature. The view taken by the appellate court that the proposed amendment alters the original defence is a possible view and requires no interference in exercise of writ jurisdiction under Article 227 of the Constitution of India. The writ petition is rejected summarily. (D.G. KARNIK, J.)