hcs 1 w905.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION WRIT PETITION NO.905 OF 2011 M/s.Sujata Metal Engineering Works Pvt. Ltd. .. Petitioner. Vs. 1.Kamlakar Baburao Patil & Ors. .. Respondents. Mr.C.P.Deogirikar for the petitioner. Mr.R.S.Datar for the respondents. CORAM: B.R.GAVAI, J. 11th February, 2011. PC: 1. Heard. 2. Rule. By consent rule made returnable forthwith. Mr.Datar, learned counsel waives service on behalf of the respondents. 3. By the present petition, the petitioner challenges the order dated 15th September, 2010 by which the application filed by the petitioner for amendment to the written statement came to be rejected. 4. The respondent-plaintiff has filed the suit praying for declaration that the plaintiff-defendant has encroached upon his property and for removal of encroachment. It is contention of the present petitioner that the town planning scheme is applicable to the suit property. In cross examination of the plaintiff hcs 2 w905.11.sxw suggestion to that effect was put to the plaintiff, wherein the plaintiff denied that town planning scheme is applicable to the suit property. In that view of the matter the application for amendment of the written statement came to be filed so as to bring on record the details regarding the town planning scheme. The same is rejected hence the present petition. 5. Shri Deogirikar, learned counsel appearing on behalf of the petitioner submitted that though the trial Court had come to the conclusion that the amendment was necessary the learned trial Court has errorneously rejected the same. Shri Datar, learned counsel appearing on behalf of the respondents vehemently opposed the application. He submitted that no interference is warranted in interlocutory order that is passed by the trial Court. 6. By now it is settled position of law that the court has to take liberal view in grant of the amendment. The only rider is by the Code of Civil Procedure (Amendment) Act, 2002 which provides that if the trial has commenced the amendment should not be allowed unless the court comes to the conclusion that inspite of exercise of due diligence the party could not have raised the matter before commencement of trial. However, it is noted that present suit is filed in 1999 and as such it would not be governed by the amended provisions of the Code of Civil Procedure. The learned trial Court has itself come to the conclusion that the amendment in question was necessary for purpose of determining the real question in controversy between the parties. As such the learned trial Court ought to have allowed such amendment. Insofar as hcs 3 w905.11.sxw prejudice that is caused to the respondent-plaintiff is concerned, same could be compensated by saddling costs on the defendant. 7. In that view of the matter the petition is allowed. The impugned order is quashed and set aside. The application filed by the present petitioner below Exhibit-69 for amendment is allowed, however, same would be subject to the costs which is quantified to Rs.3,000/-. The petitioner shall deposit the costs in the trial Court within three weeks from today. On deposit of the costs, the respondent will be at liberty to withdraw the same. Since the suit is already at evidence stage learned trial Court is directed to decide the same as expeditiously as possible and preferrably within three months from today. 8. Amendment to be carried out within three weeks. In case the costs is not deposited and amendment is not carried out within the aforesaid period of three weeks the petition shall stand dismissed without reference to the court. (B.R.GAVAI, J.)