1 53 wp.7985.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7985 OF 2010 Kanhaiyalal Motilal Talera. ... Petitioner Versus Mrs. Mrignayana Raje Mrigendra and others. ... Respondents ----- Mr. Madhav J. Jamdar for the Petitioner. Mr. M.J.Patil for Respondent No.1. ----- CORAM : A.S.OKA, J. DATE : 27 th July, 2011. P.C. 1 By this petition under Article 227 of the Constitution of India, the Petitioner who is the original plaintiff has challenged the order dated 24 th June, 2010 passed below application at Exhibit – 125. 2 The Petitioner has filed a suit for specific performance of agreement dated 20 th August, 1989 allegedly executed by the Respondents in respect of the suit property. One of the averments 2 53 wp.7985.10 made in the plaint is that at the time of execution of the suit agreement, a sum of Rs.21,00,000/- was paid by the Petitioner to the Respondents. In the amended written statement filed by the Respondents, it was pleaded that the Petitioner has not given any particulars of payment of Rs.21,00,000/- allegedly made to the Respondents. Therefore, the application at Exhibit – 125 was made by the Petitioner for the amendment of plaint for the purpose of incorporating the details and particulars of the alleged payment of Rs.21,00,000/- made by the Petitioner. The said application was filed after filing of an affidavit in lieu of examination-in-chief of the Petitioner. By the impugned order, the said application has been rejected. The impugned order reads thus: “Order Read appln. Perused rg. Plff. want to amend suit to state facts of payment of Rs.21,00,000/-. In fact it is part of evidence for prove payment of Rs. 21 Lac & evidence is not required to be pleased. Application for rejection.” 3 53 wp.7985.10 3 The submission of the learned counsel appearing for the Petitioner is that the amendment was necessitated as a contention was raised by the Respondents in the written statement that in the plaint particulars of payment of Rs.21,00,00/- have not been set out. He submitted that the said contention was raised by carrying out amendment to the written statement after the affidavit in lieu of examination-in-chief was filed and therefore, the Petitioner had to apply for amendment of the plaint. 4 I have given careful consideration to the submissions. The learned trial Judge is right when he came to the conclusion that it is for the Petitioner to adduce evidence and prove that a sum of Rs.21,00,000/- has been paid by him to the Respondents and for that purpose, the amendment of the plaint was not necessary. It is settled law that the evidence need not be pleaded. 4 53 wp.7985.10 5 If the amendment to the written statement raising the said contention has been made after filing of the affidavit in lieu of examination-in-chief, the Petitioner can always seek permission of the trial Court to file additional or supplementary affidavit in lieu of examination-in-chief for the purpose of dealing with the amended part of the written statement. The Petitioner can always adduce evidence for proving the alleged payment of a sum of Rs. 21,00,000/-. For that purpose, it is not necessary to amend the plaint. 6 Subject to what is observed above, no case for interference is made out. Writ petition is rejected. [ A.S.OKA, J ]