KBP 1715-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1715 OF 2009 Ms.Pratidnya Shripal Shete ..Petitioner Vs. Ravindra Damodar Kurpe and ors. ..Respondents ....... Mr.A.P.Vanarase, for petitioner. Mr.Jaydeep Deo, for respondent nos.1 and 2. Mr.S.A.Sawant a/w. Mr.Ketan Joshi i/b.M/s.Barve & Co. for respondent no.3. ....... CORAM : A.S.OKA, J.. DATE : 18 th SEPTEMBER, 2009. P.C. : 1] Submissions of the learned counsel for the parties were heard on earlier date. 2] By the impugned order dated 15 th November, 2008, the application made by the petitioner who is first defendant for amendment of the written statement has been rejected by the trial court. 3] The suit was filed by first and second respondents against the petitioner and third respondent. According to the case of the first and second respondents, the dispute relates to a residential flat which is more particularly described in paragraph 1(B) of the plaint. It is stated that the petitioner is the owner of the said flat and he agreed to sell the same to the first and second KBP 1715-09.sxw 2 respondents by agreement dated 4 th March, 2006 at the price of Rs. 6,40,000/-. It is alleged that various terms and conditions agreed between the parties were incorporated in the agreement. It is contended that the petitioner did not comply with her part of the agreement. The petitioner did not bring no objection certificate from the Society. The petitioner had taken some loan from the third respondent for acquiring the flat and it is alleged that the petitioner had created a mortgage in favour of the third respondent. The suit was filed for specific performance of the agreement directing the petitioner to clear the dues of the third respondent, and thereafter, to perform the agreement specifically by accepting the balance consideration. A written statement and reply to the application exhibit 5 for temporary injunction was filed by the petitioner. An order of temporary injunction was passed in favour of the first and second respondents. 4] An application for amendment of the written statement was made by the petitioner. The first amendment sought was to the averments made in paragraph 6 of the written statement for substituting the word “is” by word “was” and the word “are” by the word “were”. Similar corrections were sought in paragraph 9 of the written statement. Further amendment was sought for adding a factual statement in paragraph 16. 5] In the original written statement and particularly in paragraph 9, thereof an assertion was made by the petitioner that she is ready to perform KBP 1715-09.sxw 3 her part of the contract. The amendment sought by the application is for substituting the word “is” by the word “was”. A further amendment was sought in the said paragraph for substituting the word “are” by the word “were”. In paragraph 16 of the written statement, the petitioner prayed for adding the averments that as per letter dated 11 th May, 2006 sent by her and as per the reply given by her advocate to the suit notice, the first and respondents were informed about the cancellation of he suit agreement. 6] The application for amendment of the written statement has been rejected on the various grounds. One of the grounds is that the contentions which are sought to be raised by the amendment could have been raised earlier. The learned Judge held that the amendment was not technical, typographical or grammatical as prayed by the petitioner. 7] Learned counsel for the petitioner pointed out that the earlier written statement was filed in April, 2008 and present application for amendment was filed in September, 2008 and there was no reason to disallow the said amendment. 8] Learned counsel for the first and second respondents invited my attention to the text of the amendment and submitted that the amendment proposed to be made in paragraph 9 of the written statement will cause prejudice to the first and second respondents. He submitted that no case is made out by the petitioner. The learned counsel for the third respondent KBP 1715-09.sxw 4 supported the impugned order by making similar submissions. 9] I have carefully considered the submissions. As stated earlier, in the suit of year 2007, a written statement was filed on 5 th April, 2008 and present application for amendment was moved on 16 th September, 2008. Perusal of the text of amendment shows that there is no attempt to withdraw any admissions in the earlier statement. The amendment sought to be incorporated is for correcting the errors in the earlier written statement. It is not possible to accept the submission made by the respondents that the amendment sought to be made in paragraph 9 amounts to the withdrawal of admissions. In my view, the learned trial court has taken a hyper-technical view of the matter by rejecting the application for amendment of written statement. It is well settled that the amendment of the pleadings and especially the written statement are required to be liberally allowed. In the circumstances, the petition must succeed. The petitioner will have to pay costs of Rs.2,500/- to the first and second respondents and costs of Rs. 2,500/- to the third respondent. 10] Hence, I pass the following order:- (a) The impugned order dated 15 th November, 2008 is quashed and set aside. Application exhibit 23 is allowed. (b) The petitioner is directed to pay an an amount of Rs. 2,500/- to the first and second respondents as costs. The petitioner shall also pay an amount of Rs.2,500/- to KBP 1715-09.sxw 5 the third respondent as costs. Amount of costs be deposited in the trial court within eight weeks. (c) Writ petition is allowed in the above terms. ( A.S.OKA, J. )