1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 4239/2010 (Deorao M. Mehar VERSUS Mahadeo T. Mehar & 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.P. Kshirsagar, counsel for the petitioner. Shri N.A. Vyawahare, counsel for the R-2 & 3. Shri D.B. Patel, A.G.P. for the R-5. CORAM : SMT. VASANTI A. NAIK, J. DATE : FEBRUARY 8 , 2011 . By this petition, the petitioner impugns the order passed by the trial Court on 03.07.2010 allowing an application filed by the defendant nos.2 and 3/respondents for amendment of the written statement. The petitioner is the original plaintiff. A suit was filed by the plaintiff for perpetual and mandatory injunction against the defendant nos.2 and 3 from causing interference with the possession of the plaintiff over the suit property. The plaintiff also sought a declaration that he was an absolute owner and possessor of certain suit properties and the partition-deed executed between the parties on 15.03.1993 was final and conclusive. The defendant nos.2 and 3 filed a joint written statement and denied the claim of the plaintiff. It was denied that the defendant no.1 had executed a partition-deed between himself and his three sons. It was also denied that the plaintiff was the absolute owner of a part of the suit property and was entitled to permanent and mandatory injunction as sought by him. 2 During the pendency of the suit, the defendant nos.2 and 3 filed an application for amendment of the written statement so as to seek a counter claim for partition and separate possession of their part in the suit property. The plaintiff seriously opposed the amendment application but, the trial Court, by the impugned order dated 03.07.2010, allowed the same. On hearing the learned counsel for the parties and on perusal of the impugned order dated 03.07.2010 along with the application and the reply filed thereto, it appears that the trial Court did not commit any error in permitting the defendant nos.2 and 3 to amend the written statement. The trial Court rightly held that it was necessary to amend the written statement so as to avoid the multiplicity of proceedings. The trial Court found that the proposed amendment did not change the nature of the suit. It was also held by the trial Court that the question whether the counter claim was filed within the prescribed period of limitation or not was a mixed question of law and facts in the present case and, therefore, it could not be said that the amendment application was liable to be rejected on the ground that the proposed amendment was barred by limitation. It also cannot be said that because the issues were framed in the matter, it was not permissible for the trial Court to have allowed the amendment application and permitted the respondent to file the counter claim. The Court rightly held that though the issues in the suit were already framed, the evidence had yet to begin and in the facts and circumstances of the case, it was necessary to allow the amendment application. The trial Court was perfectly justified in allowing the amendment 3 application as it was necessary to do so for effectively deciding the controversy between the parties and for avoiding the multiplicity of the proceedings. Furthermore, the trial Court rightly took into consideration, the fact that the suit was filed by the plaintiff for a declaration that the partition- deed was valid and the defendants had denied the partition- deed. Since the impugned order dated 03.07.2010 does not suffer from any jurisdictional error, the same cannot be interfered with, in exercise of the writ jurisdiction. The writ petition fails and is dismissed with no order as to costs. JUDGE APTE