1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7991 OF 2008 Shri Manik Govind Daundkar ... Petitioner v/s Shri Shakh Mohammed Mohiuddin & ors... Respondents Ms.Jai V. Kanade for the petitioner. Mr.Prashant P. More for respondent Nos.1 and 2. CORAM: SMT.NISHITA MHATRE, J. DATED: 18TH JUNE, 2009 P.C.: 1. The petition has been filed against the order dated 6.8.2008 by which the application for amendment of the written statement filed by the petitioner has been rejected. The petitioner contends that the suit had been filed by the respondents for removal of a pipeline which, according to the respondents, was an encroachment on his property. A document relied on in the plaint, 2 which was a registered sale deed, under which it was contended by the plaintiffs that the defendant had agreed to remove any encroachment if the plaintiffs objected to the same. The defendant i.e. the petitioner herein, in his written statement contended that the document dated 5.9.1989 did not mention anything about the removal of the pipeline from the property of the plaintiffs if it caused nuisance when he executed the document. The land bearing City Survey No.256 which was owned by the Gaikwad brothers was sold alongwith the structure thereon by a registered sale deed dated 6.10.1970 to one Mr.Gavade. He in turn sold the land alongwith the structure to the original defendant i.e. the petitioner and the Respondent No.3 by a registered sale deed dated 3.12.1973. It is the contention of the petitioner that the plaintiffs i.e. respondent Nos.1 and 2 herein obtained signatures of the defendants in the suit on a document purporting to be an agreement, by representing to the defendants that they wanted to drain waste water from their own land through the drainage line of the defendants. According to the defendants, a copy of this document was never furnished to them by the plaintiffs. The plaintiffs then by a notice of their advocate dated 3 6.1.1994 requested the defendants to remove the drainage pipeline on the ground that it was causing a nuisance to the plaintiffs’ property bearing city survey No.254 of 255. The defendants denied that they were causing any nuisance to the plaintiffs. The plaintiffs then filed Regular Civil Suit No.65 of 1996 before the Civil Judge, Junior Division, Khed, seeking a mandatory injunction against the defendants to remove the drainage pipeline which they claim the defendants had laid there through city survey Nos.254 and 255. 2. Defendant NO.2 i.e. the petitioner herein filed his written statement denying the document of 5.1.1989 on the basis of which the plaintiffs claim that the defendants had undertaken to remove the drainage line from the property of the plaintiffs if it caused nuisance to the plaintiffs. Although the petitioner has adverted to the document of 5.9.1989, he has not specifically stated that there was nothing contained in the document regarding removal of the pipeline from the plaintiffs’ property. He has further stated that the contents of the document are incorrect. However, it appears that no specific pleading was included in the written statement 4 regarding the insertion of the last line in the document without the consent and knowledge of the petitioner. According to the petitioner he had instructed his advocate in the matter, however, the advocate neglected to incorporate this contention in the written statement. In the cross-examination, the petitioner has put a suggestion to the plaintiff No.1 that the last line has been inserted in the document behind his back, which has been denied by the plaintiff. 3. The suit was decreed and the petitioner was directed to remove the pipeline which passed through the property of the plaintiffs. An appeal has been preferred by the petitioner after changing his advocate. He has now sought to amend his written statement by preferring an application in the appeal. That application has been disallowed by the learned Judge. 4. Ms.Kanade, appearing for the petitioner submits that the Appellate Court ought not to have been so severe on the petitioner and should have granted the application. She submits that the negligence or fault of the advocate should not be a cause for 5 preventing the petitioner from getting justice. She submits by relying on a judgment in the case of B.K.Narayana Pillai v/s Parameswaran Pillai & anr., reported in (2000) 1 SCC 712 and Vijaykumar v/s U.G.N.S.N.Sasntha, reported in 2006(3) Mh.L.J. 676, that unless the proposed amendment causes injustice to the other side and/or would result in admissions in favour of the plaintiffs being withdrawn, the amendment can easily be allowed. 5. On the other hand, the learned advocate for the respondents submits that the amendment is proposed as an afterthought and, therefore, this Court should not grant any relief to the petitioner. He points out that there is no error of law committed by the Appellate Court requiring interference by this Court. He further submits that the petitioner had every opportunity to amend his written statement before the Trial Court itself. He urges that the circumstances of this case do not warrant that the petitioner should be permitted to amend the written statement. 6. I have given my anxious consideration to the submissions of the learned counsel for the parties. 6 The application has been filed on the ground that the advocate who was appearing for the petitioner did not incorporate the contention as instructed by the petitioner. The written statement indicates the denial of the contents of the document dated 5.9.1989. However, there is no specific pleading to the effect that the last line has been inserted n the document without the consent or knowledge of the petitioner. It is this pleading which is sought to be added by means of the amendment. 7. The proposed amendment, in my opinion, would not cause any injustice to the respondents as there is a general denial in the written statement to the contents of the document. There is no admission made in favour of the plaintiffs which is being withdrawn by this amendment. The amendment does not contain inconsistent and contrary allegations which negate admitted facts. The pleas raised in the amendment are not repugnant to the contentions raised in the written statement. 8. In these circumstances, in my opinion, the amendment must be permitted. The Supreme Court in the case of B.K.Narayana Pillai (Supra) has held 7 that an amendment of the pleadings should be permitted under Order 6 Rule 17 where the real controversy between the parties would be resolved without altering the original cause of action. However, there is a note of caution that where a legal right has accrued to a party due to lapse of time, an amendment resulting in the defeat of such a right should not be allowed. Delay untouched by fraud should not be a ground for rejecting application for amendment, as observed by the Supreme Court. 9. In the present case, as aforesaid, there is no question of any fraud being played. The petitioner cannot be penalized for the negligence of his advocate. However, it is true that the respondents would be put to some costs which, in my view, can be compensated. 10. Writ petition is allowed. 11. The amendment application is allowed, subject to payment of costs of Rs.3,000/- within four weeks from today. .... 8