( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 978 OF 2004 WITH WRIT PETITION NO. 3725 OF 2004 * * * * * WRIT PETITION NO. 978 OF 2004 Pravinkumar s/o. Jinabhai Patel .. Petitioner Versus Kalpita Builders Pvt. Ltd. and ors. .. Respondents Shri A.S. Bajaj, Advocate for the petitioner. Shri A.B. Kale, Advocate for respondent No.1. WITH WRIT PETITION NO. 3725 OF 2004 Kalpita Builders Pvt. Ltd. .. Petitioner Versus Pravinkumar Jinabai Patel and ors. .. Respondents Shri A.B. Kale, Advocate for the petitioner. Shri A.S. Bajaj, Advocate for respondent No.1. CORAM : P.R. BORKAR,J. RESERVED ON : 26.08.2009 PRONOUNCED ON : 02.09.2009 ( 2 ) O R D E R :- 1. These two writ petitions are directed against the order passed by the IInd Jt. Civil Judge, Senior Division, Jalgaon, on Application Exh.168 filed by original defendant No.1 for amendment of written statement under Order VI Rule 17 of the Code of Civil Procedure, which was partly allowed on 30.10.2003. Thus, the permission to amend the pleadings as per paragraphs 3a to 3c of the application for amendment was refused, but proposed addition of paragraphs 16a to 16d in the written statement was allowed. Defendant No.1, who filed application Exh.168, filed Writ Petition No. 978 of 2004, being aggrieved by refusal to allow amendment as per paragraphs 3a to 3c; whereas the plaintiff filed Writ Petition No. 3725 of 2004, being aggrieved by allowing amendment and addition of paragraphs 16a to 16d to the written statement. 2. The learned advocate Shri A.B. Kale who appears for original plaintiff has argued that in-fact no written statement was filed within limitation as per Order VIII Rule ( 3 ) 1 of Code of Civil Procedure and the written statement that was filed though accepted and marked as “Read and Recorded”, was accepted without setting aside order of “No W.S.”, passed earlier and even though there was no application for setting aside order to proceed with the suit without written statement. It is further stated that paragraphs 16a to 16d sought to be added were same pleadings which the wife of defendant No.1 had pleaded in application Exh.112 which came to be rejected. It is also argued by both sides that there was no application of mind while partly rejecting and partly allowing the application for amendment. 3. It may be noted that Order VIII Rule 1 of C.P.C. came to be amended by the Amendment Act of 22 of 2002, which came into effect on 1st July, 2002. The suit was filed on behalf of Kalpita Builders Pvt. Ltd., Jalgaon, through its Director – Anilkumar Jinabhai Patel on 08.02.1999. By the plaint, plaintiff sought declaration that sale-deeds executed by defendant No.1 in favour of defendant Nos. 2 to 19 and the agreement of sale executed in favour of defendant No.20 were illegal and null & void and for possession of properties which are subject matters of the sale-deeds and the agreement ( 4 ) of sale between defendant No.1 and defendant Nos. 2 to 20 and for perpetual injunction restraining transfer of property of the plaintiff company and also for the accounts. 4. After suit was filed, summons was served on defendant No.1 Pravinbhai Patel, who was brother of plaintiff Anilkumar. He appeared on 26.02.1999. Thereafter, he sought adjournment to file written statement vide Exhibits 38, 46, 53, 58, 65, 71, 80, 82, 84, 85, 89, 90, 91, 92, 93 & 94. The Court passed order of “No W.S.” on 07.10.1999 after application Exh.82 came to be rejected. The written statement was filed on 23.08.2001 after period of 30 months. There was no application for acceptance of written statement or for setting aside the “No W.S.” order. However, after the written statement was filed, the endorsement “R & R” (read and recorded) was passed and also written statement was marked Exh.97. Copy of the written statement was received by the plaintiff on 23.08.2001 itself, as per the endorsement made on the said written statement Exh.97. 5. It is argued before this Court that the Court could not have accepted the written statement without there being ( 5 ) application for setting aside the written statement and without setting aside order to proceed with the suit without written statement. Under the circumstances, the application for amendment Exh.168 is not tenable in law. 6. Rule 1 of Order VIII prior to the amendment applicable to our State was as follows:- “1, Written statement.- The defendant may, and if so required by the Court, shall within such time as may be specified in this behalf or within such extended time as the Court may permit, present a written statement of his defence after serving a copy thereof on the plaintiff or his pleader on or before the date fixed for presenting the same in Court, or file in Court for the use of the plaintiff a copy of the written statement while presenting the same in Court: Provided that the first adjournment for filing the written statement shall not ordinarily exceed four weeks and no further adjournment shall be granted except for reasons to be recorded in writing.” . By the amended Act of 2002, which came into force on 01.07.2002, the amended Rule 1 of Order 8 is as follows. “1. Written statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his ( 6 ) defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.” 7. So, while we are considering the acceptance of written statement, we will have to consider the law as it stood when the written statement was filed. It is clear that the defendant was to file written statement within time specified by the Court or within extended time as the Court may permit. In this case it is argued that the plaintiff never challenged the acceptance of written statement on 23.08.2001 inspite of earlier order to proceed without written statement of defendant No.1. Not only on same day the written statement was taken on record and marked exhibit but copy of the same was also served on the plaintiff and the plaintiff never took any objection for acceptance of written statement until he filed say on the application Exh.168, which is produced at Exh. “D” in Writ Petition No.978 of 2004. Said say is filed on 16th August, 2003. So, objection is taken only after application for amendment of the written ( 7 ) statement was filed. 8. It is also argued by the learned advocate for the plaintiff Shri A.B. Kale that by the amendment application, defendant No.1 sought to add some paragraphs which were pleaded by defendant Nos.1’s wife by application Exh.112. We find copy of the same in Writ Petition No.3725 of 2004. Said application is produced at Exh. “N” with the writ petition. It was an application under Order I Rule 10 of the Civil Procedure Code praying that Anilkumar Jinabhai Patel had no authority to file suit as Director and therefore his name be struck down and name of Savita Pravinkumar Patel, who is admittedly wife of defendant No.1, should be added as plaintiff and the contents of paragraphs 16a to 16d were stated as reasons for adding Mrs. Savita as plaintiff in place of Anilkumar. The Court rejected the application on 20.02.2008 on the ground that the allegations made would require evidence and the application could not be so lightly allowed. Under the circumstances, after application Ex.112 was disposed of, if application for amendment is made by defendant No.1, it cannot be said that it should not have been allowed so far as addition of paragraphs 16a to 16d are ( 8 ) concerned. 9. In the application Exh.168 it is stated by defendant No.1 that there was already delay in filing written statement due to inadequate information and non-availability of necessary documents and so Court has passed order of “No W.S.”. Thereafter, in haste defendant No.1 filed written statement and at that time, there were some omissions in furnishing details and commission of some errors. Therefore, he was making the application. 10. It is necessary to consider the nature of amendment which is sought to be made. Firstly, we will consider portions of amendment sought which were rejected. In paragraph 3-a it is stated that the contents of paragraph 4 of the plaint were in-fact true, but wrongly same were mentioned to be false and it was tried to be explained that the contents of paragraph 4 of the plaint regarding “C” wing of Vrundavan Apartment are correct. Similarly, by paragraph 3b defendant No.1 wanted to say that he had wrongly denied the contents of paragraph 5 of the plaint and he admits said contents. In my opinion, by said amendments, defendant No. 1 ( 9 ) was only admitting certain portions of the plaint, which he had wrongly denied and absolutely there was no prejudice caused to the plaintiff, if certain contents of his plaint are admitted by defendant No.1 and amendment to that effect was allowed. By paragraph 3-C defendant No.1 sought to further clarify his written statement paragraph 8 which refers to plaint paragraph 6. If we read paragraph 6 of the plaint and written statement paragraph 8, it is clear that the plaint paragraph 6 referred to the alienated properties at two places Bambori and Khedi Khurd, whereas written statement paragraph 8 does not explain in respect of which of the two properties, defendant No.1 wanted to deny and in respect of which he was admitting. So, it was being explained that he was admitting the contents so far as land at Bambori is concerned, but was disputing in respect of property at village Khedi Khurd. By this amendment also the plaintiff was not likely to be prejudiced. It was merely removing confusion created by paragraph 8 of the written statement. In-fact, such amendment was necessary to make the things clear and remove ambiguity and confusion. 11. So far as paragraphs 16a to 16d are concerned, as I ( 10 ) have stated earlier, merely because application of Savita, wife of defendant No.1, was rejected for substituting her as plaintiff, as she was Director of the plaintiff company, it cannot be said that defendant No.1 cannot plead those narration of events or contentions. Adv. Shri A.B. Kale argued that paragraph 16a to 16d are referring to certain events which have taken place between 1995 to 1997. The defendant was aware of them when he filed original written statement and no explanation is given for omitting said portion from the written statement earlier. But defendant No.1 at the outset of Exh.168 in para 1 has stated that earlier written statement was filed in haste and without getting all documents and some information was not available and therefore he wanted to file additional written statement. 12. The law is now well settled that the amendment should be allowed if it is aimed at bringing real question of controversy on record. If we consider stage of the suit, it was still at preliminary stage and it is not that the issues were framed and the matter was ready for hearing. In-fact, application for amendment Exh.183 filed by the plaintiff and the application for amendment of written statement Exh.168 ( 11 ) filed by respondent No.1 were both decided on one and same day. So, after amendment of the plaint, defendant No.1 was entitled to file his additional written statement. So, no prejudice is caused to the plaintiff if amendment to written statement is allowed. 13. Now the law regarding amendment of pleadings is well settled. As observed in the case of Dalip Kaur and anr. V/s. Major Singh and Ors., AIR 1996 P & H 107, following principles should be kept in mind while dealing with the application for amendment of the pleadings:- “(i) All amendments should be allowed which are necessary for determination of the real controversies in the suit; (ii) the proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original lis was raised; (iii)inconsistent and contradictory allegations in negation to the admitted position of facts or mutually distructive allegations of facts would not be allowed to be incorporated by means of amendment; (iv) proposed amendments should not cause prejudice to the other side which cannot be compensated by means of costs; (v) amendment of a claim or relief barred by time should not be allowed. ( 12 ) (vi) no amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time; (vii)no party should suffer on account of the technicalities of law and the amendment should be allowed to minimize the litigation between the parties; (viii) the delay in filing the petitions for amendment of the pleadings should be properly compensated by costs; (ix) error or mistake which if not fraudulent should not be made on ground for rejecting the application for amendments of pleadings.” 14. It does not appear that the amendment sought to be made by defendant No.1 had taken away any admission given by defendant No.1 in favour of plaintiff or his new pleadings are totally inconsistent with the earlier defences taken. It does not appear that proposed amendment causes any prejudice to the plaintiff. There is nothing on record to show that the amendment application is not bona fide. 15. In the facts and circumstances of the case, in my opinion, considering totality of the circumstances, Writ Petition No. 978 of 2004 deserves to be allowed and Writ Petition No.3725 of 2004 deserves to be dismissed. The Trial ( 13 ) Court ought to have allowed the entire amendment sought by application Exh.168. 16. Accordingly Writ Petition No. 978 of 2004 is allowed. The order passed by learned II Jt. Civil Judge, Senior Division, Jalgaon, refusing to allow pleadings as per paragraphs 3a to 3c of application Exh.168 is hereby set aside. The defendant No.1 is also allowed to carry out amendment as per paragraphs 3a to 3c of Exh.168. 17. Writ Petition No. 3725 of 2004 is hereby dismissed. 18. The record and proceedings be sent back to the Trial Court forthwith. 19. In the circumstances, the parties are directed to bear their own costs. [P.R. BORKAR,J.] snk/2009/AUG09/wp978.04