1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Writ Petition No. 4472/2010 Ravi Laxman Kadu Vs. Murlidhar K. Wakode =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. Rohit Joshi, Adv. for the petitioner. Mr. G. P. Naphade Adv. for respondent. CORAM : B.P. DHARMADHIKARI, J. NOVEMBER 26, 2010. Heard Advocate Joshi for the petitioner/plaintiff and Advocate Naphade for the respondent/defendant. In a suit filed by Petitioner a counter claim claiming damages on account of defamation was preferred by present respondent. The petitioner examined himself and thereafter also examined one of his witnesses. At that stage, application for amendment of counter claim has been filed. The application was opposed and the trial Court has granted it by observing that letters on the basis of which amendment was sought were already filed on 2 record. Advocate Joshi states that though the letters were on record, they were not supported by pleadings and neither the petitioner/plaintiff nor his witness was confronted therewith. According to him, there is no justification for making such application belatedly. Advocate Naphade states that suit filed is in the year 1998. Hence, order under amended provisions under Section 6 Rule 17 of CPC are not attracted. Reliance has been placed upon the judgment reported at (2001) 8 SCCC 115 (Dondapati Narayana Reddy Vs. Duggireddy Venkatanarayana Reddy) to urge that amendment of such nature can be allowed and learned counsel places emphasis on the fact that pleadings are only to support material which is on record. Filing of counter claim for alleged defamation is not in dispute. The letters allegedly resulting into defamation were placed on record but were not supported by any pleadings in the counter claim. Those letters were not put either petitioner or his witness. After closer of evidence of the 3 petitioner/plaintiff and his witness counter claim is sought to be amended by giving details of person to whom those letters are allegedly written by petitioner and such names in pleadings definitely causes serious prejudice to the petitioner/plaintiff. There is no justification as to why this disclosure could not be effected earlier. The judgment on which Advocate Naphade has placed reliance shows that during pendency of a suit for partition raising plea of inheritance through registered will plaintiff sought permission to adduce additional evidence regarding testamentary succession by producing the will. That application was granted by the trial Court and the High Court allowed the appeal against it. Defendant then filed application seeking to challenge that will on various grounds. The said amendment was not permitted by the trial Court as also High Court. The Hon'ble Apex Court was approached against both orders and the Hon'ble Apex Court has allowed both the appeals. The trial Court was directed to allow amendment and the plaintiff was permitted to lead additional evidence. 4 The facts clearly show that difference. On the basis of will produced, the plaintiff was permitted to lead additional evidence but then defendant no.1 was not permitted to challenge that will by effecting amendment by the trial Court. The view has therefore no application in the present facts. Here the alleged letters were already on record since long and were not supported by any pleadings. The impugned order dated 22.6.2010 passed below Exhibit 65 is unsustainable. The same is accordingly quashed and set aside. The application for amendment filed by the respondent is rejected. Writ Petition is accordingly allowed. No costs. JUDGE ambulkar