jpc wp7964-11.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.7964 OF 2011 Dr. Jawahar s/o Mayashankar V. Desai and others ... Applicant Versus Mr. Naresh Dhirajlal Shah and another ... Respondents Mr. Bharat Joshi a/w Mr. Shardul Singh, Viral Amen i/by B. Amin & Co. for the petitioners Mr. P.s. Dani for respondent Nos. 1 and 2 CORAM : GIRISH GODBOLE, J. DATED : 12th OCTOBER, 2011 P.C. : 1. Heard Mr. Joshi for the petitioner and Mr. Dani for the respondents. 2. Rule. By consent rule made returnable forthwith and heard finally. Mr. Dani waived service for respondent nos. 1 and 2. 3. In a suit for eviction filed in the year 1982 on the ground of arrears of rent, bonafide requirement and alleged non user of the suit premises, Defendant No. 8 was added in the year 2008 pursuant to the order passed by this Court in Writ Petition No. 3344/2006. Thereafter defendant No. 8 filed written statement on 4th February, 2008. Mr. Joshi jpc wp7964-11.sxw 2 has drawn my attention to paragraphs of 26 and 27 of the said written statement which clearly indicate that though written statement was elaborately dealing with each and every paragraph, apparently by oversight no pleadings in defence of averments in para 10 of the plaint were incorporated in the written statement. This is how the application Exh. 82 was filed in the suit seeking amendment of written statement for incorporating paragraph 26-A and 26-B. That application was opposed by the plaintiffs. By the impugned judgment and order dated 5th September, 2011, passed in RAE & R Suit No. 122/147 of 1982, learned Judge of the Court of Small Causes, Bandra Branch has partly allowed the application for amendment by permitting paragraph No. 26- B, but amendment at para 26-A is not granted. Being aggrieved by this order present Petition is filed. 4. Mr. Joshi has drawn my attention to the fact that when inadvertent omission in the original written statement was brought to the notice of petitioners by their Attorney by writing letter dated 20th March, 2011, immediately an application for amendment was filed. As stated above he has also drawn my attention to the effect that in the original written statement no pleadings in defence of averments in para 10 of the plaint were incorporated. Mr. Joshi pointed out to me that though the suit was of the year 1982, the learned Judge of the Trial jpc wp7964-11.sxw 3 Court held that bar provided for proviso to Order 6 Rule 17 of the Code of the Civil Procedure 1908 will apply. 5. On the other hand Mr. Dani submitted that though insertion of Para 26-B is allowed, the Trial Court was justified in refusing permission to insert paragraph 26-A in the Written statement. He has submitted that filing of the application suffered from delay. The application was filed at belated stage, when the affidavit of examination in chief of the plaintiffs has been filed and cross examination had began. 6. I have carefully considered the rival contentions. 7. The settled position of law is that every amendment which is necessary for determining the relevant controversy involved in any suit has to be allowed even if the same is proposed at belated stage. The fact that para 10 of the plaint had not been dealt with by inadvertence is very clear from the writing of the entire written statement as originally filed. When this inadvertent omission was noticed, the application was filed immediately thereafter. Thus, no negligence can be attributed to the petitioners. 8. In the case of Ganesh Trading Company v. Moti Ram [1978] 2 S.C.R. 614, the Supreme Court has considered the scope of power to permit amendment to pleadings. It is also well established that the amendment to written statement will always be considered very jpc wp7964-11.sxw 4 liberally as against the amendment of plaint. 9. Perusal of Paragraph 6 of the impugned order clearly shows that the learned Judge has not at all applied the correct principles of law. Though Order 6 Rule 17 of the Code of Civil Procedure was amended by Civil Procedure Code (Amendment) Act, 1999 (46 of 1999) and though Section 16(iii) to the Act 1999 Act provided for complete deletion of Rule 17 and 18 by the Civil Procedure Code (Amendment )Act, 2002, it has been provided by Section 16(2) (b) as under: " the provisions of rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999 ) and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and section 7 of this Act; " 10. Thus, position is very clear that in respect of suits, which were pending prior to 1/7/2002, proviso governing power of the Court to consider application for amendment will not apply. Even otherwise, on the facts of this case it is clear that the amendment was applied for by showing due diligence and merely on account of an inadvertent error on jpc wp7964-11.sxw 5 the part of the advocate, the litigant cannot be allowed to suffer. This is because the learned judge of the trial court has completely misconstrued the relevant provisions of the Code, warranting interference under article 227 of the constitution of India. 11. It is last submitted by Mr.Dani that the proposed amendment is not germane for determination of the controversy involved in the suit. It is not the case where the defendant is seeking to withdraw any admission and only in such case the amendment to written statement is not permitted. If the defendant seeks to plead something more than what is absolutely essential that cannot be a ground to dismiss the amendment. Hence, even this objection of Mr. Dani has no merit. Mr. Dani is however, justified in contending that the suit is of the year, 1982, and after 20 years, the trial is yet going on. Hence, I pass the following order: i. Rule is made absolute in terms of prayer clause (a). ii. On account of the amendment being permitted to be made, if the plaintiffs so desire, it would be open for them to file additional/further pleadings, restricting to the averments incorporated in para 26-A and 26-B of the written statement and that exercise shall be completed on or before 19th November, 2011. jpc wp7964-11.sxw 6 iii. So also, the plaintiffs would be entitled to file supplementary/ additional affidavit for examination in chief so as to deal with the claims in amended paragraphs 26-A and 26-B of the written statement. iv. Hearing of the suit is expedited and the learned Judge of the trial Court is directed to finally hear and dispose of the suit on or before 30th April, 2012. v. Amendment to be carried our on or before 8th November, 2011. The Trial Court to act on authenticated copy. vi. No order as to costs. (GIRISH GODBOLE, J.)