1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5402 OF 2008 Atmaram S/o Sitaram Raut } Age : 50 Years, Occ. : Agriculture, } R/o : Nalvandi, Tq. & Dist. : } Beed. } .... PETITIONER V E R S U S 1. Pandit S/o Ramkrushan Raut } Age : 25 Years, Occ. Agriculture, } R/o : Nalvandi, Tq. & Dist. : } Beed. } 2. Sugriv S/o Ramkrushan Raut } Age : 31 Years, Occ. Agriculture, } R/o : Nalvandi, Tq. & Dist. : } Beed. } 3. Angad S/o Ramkrushan Raut } Age : 22 Years, Occ. Agriculture, } R/o : Nalvandi, Tq. & Dist. : } Beed. } .... RESPONDENTS Mrs. Vaishali Deshmukh, Advocate holding for Mr. V.D.Salunke, Advocate for petitioner. Mr. A.N.Nagargoje ,Advocate for respondent nos. 1 & 3. 2 CORAM : V.R.KINGAONKAR, J. DATE OF JUDGMENT : 24/02/2010 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally. 2. By this petition, the petitioner seeks to challenge Order dated 16/8/2008 rendered by the learned Civil Judge (Sr. Division), Beed on his application (Exh. 50) for amendment of Written Statement filed in R.C.S. No. 227 of 2006. The application was rejected on the ground that it was filed after commencement of the trial without proper explanation as to why such pleadings could not be raised before commencement of the trial. 3. Heard learned counsel for the parties. 4. It is not necessary to elaborately set out the entire gamut of pleadings of the petitioner. Suffice it to say that the petitioner filed Written Statement ( Exh. 12 ) in the suit, filed by the respondents for declaration of ownership and recovery of possession, wherein he contended that the suit land ( G.No. 57 to the extent of 13 Rs. ) is his ancestral property. He further asserted that averments in paragraph no. 7 of the plaint were correct and true. In the pleadings of the respondents under paragraph no. 7 it was alleged that the petitioner 3 had illegally dispossessed them. The respondents alleged that when they enquired with the concerned revenue officer, they came to know that their father had executed rectification deed and on the basis of such document, the relevant revenue entries were taken. The petitioner further sought addition of one more plea regarding estopple on account of compromise dated 24/4/1997 which was allegedly rendered between him and father of the respondents ( plaintiffs ). He alleged that the Civil Court had no jurisdiction because such compromise was effected in the revenue proceedings before the Tahsildar, Beed. The respondents resisted the application on the ground that such pleadings could have been incorporated in the Written Statement at the time of filing thereof without any difficulty. They submitted that such amendment was impermissible in view of proviso appended to Order VI Rule 17 of the Code of Civil Procedure. The trial Court accepted the objection and rejected the application. 5. Mr. Nagargoje would submit that the amendment application could not have been allowed in view of the observations in “ Vidyabai and others V/s Padmalatha and another ” (2009 (4) Mh.L.J. - 30 ) . The Apex Court held : “ The Court’s jurisdiction to allow an application for amendment is taken away unless the condition precedent therefor are satisfied viz. it must come to 4 the conclusion that in spite of the due diligence, the parties could not have raised the matter before commencement of the trial ”. 6. The purpose of the amendment application appears to be limited one. The petitioner wanted to explain the admission incorporated in paragraph no. 7 of the Written Statement. He wanted only to clarify that he had not illegally dispossessed the respondents. Nothing more was to be done in the context of the averments about illegal dispossession. It is an admitted fact that the petitioner is in actual possession of the suit land. In “ Sushil Kumar Jain V/s Manoj Kumar and another ” ( AIR 2009 Supreme Court – 2544 ), the Apex Court held that, “ admission made in the Written Statement can be explained through amendment ”. It is further observed that, “ the Court adopts for more liberal approach than adopted for allowing amendment in the plaint when amendment in the Written Statement is sought ”. The Apex Court expressed the opinion that such kind of amendment can be considered in order to facilitate proper explanation of the admission. So also, in “ Usha Balashaheb Swami and others V/s Kiran Appaso Swami and others ” (AIR 2007 Supreme Court – 1663 ), the Apex Court held that, “ inconsistent defence can be raised by the defendant and amendment pertaining to withdrawal of admission can be allowed ”. 5 7. Considering the peculiar fact situation of the present case, I find that the amendment to the extent of withdrawal of the admission regarding “ illegal dispossession ” of the respondents by the petitioner as prayed for in the context of paragraph no. 7 of the Written Statement, could have been allowed. The amendment was not likely to cause any prejudice to the respondents. The remaining prayers in the application for amendment, however, can not be granted in view of the fact that the petitioner did not explain as to why such kind of pleadings were not raised before commencement of the trial. The petitioner can not claim immunity from the legal effect of the proviso to Order XVII Rule 6 of the Code of Civil Procedure. Both the above referred authorities relied upon by the petitioner are applicable when the amendment is sought prior to commencement of the trial and not after. The amendment as regards introduction of paragraph no. 10-A and plea of estopple are unnecessary and redundant. For, plea of estopple under section 115 of the Evidence Act can be raised by way of argument and need not be a part of pleadings. The averments proposed vide paragraph no. 10-A are superfluous and unnecessary. 8. Considering the fore-going discussion, the petition is partly allowed. The impugned order is set aside only to the extent of disallowing the proposed amendment as regards the explanation of the admission in paragraph no. 7 of the Written Statement as enumerated under paragraph no. 11 of the amendment application. The remaining 6 portion of the amendment is not necessary and is not required to be allowed because the petitioner could have raised such pleas prior to commencement of the trial. Hence, the petition is partly allowed. The amendment application be deemed to have been partly allowed in the light of above observations. Rule made partly absolute accordingly. The petition is disposed of. No costs. The interim stay order is vacated with direction to expedite final hearing of the suit and to finally decide the same as far as possible within period of nine ( 9 ) months. [ V.R.KINGAONKAR ] JUDGE knp/WP 5402.2008