1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Writ Petition No. 1072/2008 (Dinkar Sadashiv Chavan & others VERSUS Shantabai Kisanrao Bhasme & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.D. Chopde, counsel for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : 20th NOVEMBER, 2008. Heard the learned counsel for the petitioner. By the instant petition, the petitioner impugns the order passed by the 3rd Joint Civil Judge (Junior Division), Pusad on 28.02.2008 rejecting an amendment application filed by the petitioners. The petitioners are the original defendants. A suit was filed by the plaintiffs for a declaration that they acquired title to the suit property by adverse possession. The plaintiffs had also sought a permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiffs over the suit property. 2 The defendants had denied the case of the plaintiffs and had also denied that the plaintiffs were in possession of the suit property since the year 1978. It is then stated in the specific pleadings that the father of the defendant nos.1 to 3 had filed a suit for possession of the room occupied by the husband of the plaintiff no.1 and the father of the plaintiff nos.2 to 4 and the same was decreed on 01.04.1992. Thereafter, the father of the defendant nos.1 to 3 expired and the defendants were not having knowledge about the decree passed in favour of their father on 01.04.1992 against Kisan. The defendants sought for the dismissal of the suit. When the civil suit was at the stage of tendering of evidence and the evidence of two of the witnesses of the plaintiffs was already recorded, the defendants filed an application under Order VI Rule 17 of the Code of Civil Procedure for amendment of the written statement. By the proposed amendment, 3 the defendants desired to advance a case that after the decree was passed in favour of their father Sadashiv and against the father of the plaintiff nos.2 to 4, Sadashiv had asked Kisan to vacate the suit site and in the summer of 1997, Kisan had handed over the possession of the suit site to Sadashiv in the presence of two witnesses. Thereafter, after 2-3 months, according to the proposed amendment, Kisan was permitted to again reside in the suit site as he was ill and hence, it can be said that Kisan again started residing in the suit site in the summer of 1997 with the permission of Sadashiv. The amendment application was strongly opposed by the plaintiffs. It was stated by the plaintiffs in the reply that the statement in the amendment application that defendant no.1 Dinkar got the knowledge of the facts from the defendant nos.2 to 4 during the pendency of the suit was incorrect and the amendment application cannot be 4 allowed so as to prejudice the case of the plaintiff and also after two witnesses were examined by the plaintiffs. The 3rd Joint Civil Judge (Junior Division), Pusad rightly rejected the amendment application by the impugned order dated 28.02.2008. It is conspicuous to note that the written statement was signed by all the defendants and defendant no.2 to 4 were also the signatories to the written statement. The statement made in the amendment application that defendant no.1 Dinkar became aware of the facts incorporated in the amendment application from his other brothers, i.e. defendant nos.2 to 4 was clearly incorrect as the defendant nos.2, 3 and 4 had also signed the written statement. Though it was categorically pleaded by the defendants in the specific pleadings that they were not aware about the passing of the decree in favour of their father and against Kisan, they tried to plead by the proposed 5 amendment that their father had got the suit premises vacated from Kisan and Kisan was thereafter again permitted to stay in the suit premises from 1997. Thus, the proposed amendment clearly changed the nature of defence of the defendants as found in the original written statement. The Court rightly held that the grant of the prayer in the amendment application would cause serious injustice and prejudice to the plaintiffs, more so, when the plaintiffs had examined their witnesses. The Court rightly held that in the facts and circumstances of the case, the amendment of written statement was not permissible at that stage. The Court also disbelieved the case of the defendants that defendant no.1 had no knowledge about the facts pleaded in the proposed amendment, specially when it was his case that he became aware of the facts from defendant nos.2 to 4, who had also signed the written statement. 6 The judgments reported in 2004(13) SCC 432, 2006(6) SCC 498 and 2007(1) Mh.L.J. 331 cannot be made applicable to the facts of this case. Though the Court should be liberal in granting the prayer for amendment of the written statement, in the instant case, the trial Court rightly exercised its judicial discretion in rejecting the amendment application. For the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE APTE