Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 7415 OF 2009 Mr. Santosh Shivram Potdar & Anr. .. Petitioners Versus Sachin Vaman Potdar & Ors. .. Respondents -- Ms Anita Castellino i/by Ms Deepa Kamath for the Petitioners. Ms A.R.S. Baxi for the Respondents. -- CORAM : A.S. OKA, J DATED : 3RD FEBRUARY, 2010 P.C. . On the last date, this Petition was taken up for final disposal at the stage of admission. By this Writ Petition under Article 227 of the Constitution of India, the Petitioners have taken an exception to an order dated 27th September, 2009 passed by the trial Court. An Application at Exhibit – 106 made by the Petitioners for amendment of the Written Statement has been rejected. 2. The present Petitioners are the 12th and 13th Defendants in a suit filed by the first Respondent. The suit filed by the 1st Respondent is, inter alia, for a partition and separate possession of his 1/4th shares. In the suit, there is a challenge to a Deed of Conveyance executed by the 1st to 4th Defendants in favour of the present Petitioners and a prayer in the said suit is that as the said transaction is effected without any legal necessity, the said sale was not binding on the share of the 1st Respondent. The suit was instituted on 12th April, 2002. A Written Statement was filed by the Petitioners. Various contentions were raised by the Petitioners. It was sought to be contended that the conveyance was executed for a legal necessity. 3. The application for amendment of the Written Statement was made at Exhibit-106 on 23rd February, 2009. The application for amendment has been rejected by the trial Court by relying upon the proviso to Rule 17 of Order VI of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code” ) which was brought on the statute book with effect from 1st July, 2002. The reason given is that no ground is made out for permitting the amendment after commencement of a trial. 4. The learned counsel appearing for the Petitioners submitted that the amendment was necessary for effective adjudication of a dispute involved in the suit and the amendment does not change the nature of a defence taken by the Petitioners earlier. She submitted that the amended provision of Rule 17 of Order VI of the said Code was not applicable to the application for amendment made by the Petitioners as the suit has been instituted before July, 2002. The learned counsel appearing for the 1st Respondent supported the impugned judgment and order and submitted that no interference is called for with the impugned order as the application for amendment was belatedly filed. 5. I have carefully considered the submissions. In the application for amendment, it is contended that certain factual aspects have not been inadvertently incorporated in the Written Statement. In Paragraph 7 of the Written Statement, the Petitioners are seeking to introduce an averment that the Sale Deed was executed in their favour for the purposes of repayment of loan and making household expenditure. An averment was sought to be added to the effect that after making full inquiry, the Petitioners have entered into the said transaction. The additional Paragraph 9 was sought to be incorporated in the Written Statement for ascertaining that the petitioners are in possession of the property subject matter of the Sale Deed with effect from 2nd April, 2002 and apart from constructing a fencing, they have carried out certain improvements on the property and have constructed a house by spending a sum of Rs.25,00,000/-. After pointing out the factual aspect, it was sought to be contended that if a decree for partition is passed, the property purchased by the Petitioners be allotted to the share of their predecessors. 6. On plain reading of the text of the amendment, it is obvious that the amendments proposed to Paragraph 7 of the Written Statement are for elaborating the factual contentions which are already raised in Paragraph 7. The additional paragraph is sought to be incorporated for contending that considering the improvements carried out by the Petitioners on the property purchased by them, in the event the Court is inclined to pass a decree, the property purchased by the Petitioners be allotted to the share of their predecessors. 7. Thus, the proposed amendment does not change the nature of the defence. As the amended Rule 17 of Order VI of the said Code is not applicable, the amendment could have been permitted at any stage of the proceedings. It is true that the application for amendment was made after the 1st Defendant filed an affidavit in lieu of the examination-in-chief. The prejudice caused to the 1st Respondent could have compensated by ordering payment of costs. Considering the facts and circumstances of the case, the amount of costs is quantified at Rs. 7,500/-. It is obvious that after the amendment is carried out, it will be open for the 1st Respondent to lead further evidence, if any, for dealing with the amended Written Statement. 8. Hence, I pass following order. (a) The impugned order dated 29th July, 2009 is quashed and set aside. (b) The application made by the Petitioners at Exhibit – 106 is allowed subject to the Petitioners paying costs of Rs.7,500/- to the 1st Respondent within a period of eight weeks from today. The deposit of the costs with the trial Court will be a substantial for compliance of this order. (c) After the amendment is carried out, it will be open for the 1st Respondent to lead further evidence for dealing with the amendment carried out to the Written Statement. It will also be open for the trial Court to frame additional issue on the basis of the additional amendment of the Written Statement. (d) The Petition is allowed in above terms. JUDGE