1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.370 OF 2009 IN CHAMBER SUMMONS NO.940 OF 2009 IN SUIT NO.919 OF 1981 Mulund Dev Ashish Co-op. Housing Society Ltd. .... Appellant V/s. Bawa Maharaj Singh Bawa ..... Respondent Mr.H.Toor i/by Nandu Pawar, for the appellant. None for the respondent. CORAM :P.B.MAJMUDAR & MRIDULA BHATKAR, JJ. DATE : NOVEMBER 07, 2009 P.C. 1. This appeal is directed against the order passed by the learned Single Judge dated 23-06-2009 by which the learned Single Judge has rejected the prayer for amendment in the written statement. The appellants are the original defendants of suit No.919 of 1981 filed by the respondent/original plaintiff. The said suit is filed by the plaintiff for possession on the ground that the defendant has wrongfully encroached upon portion of the land. The suit was resisted by the defendant by filing written statement. By an order dated 15-07-2000 the learned Single 2 Judge permitted the plaintiff No.2 to be deleted from the plaint. The defendant thereafter, moved an application by way of Chamber Summons in the year 2009 for amending the written statement as to assert that the suit is bad for non-joinder of necessary parties as the plaintiffs have failed to join persons through whom they derive title to the suit property. The learned Single Judge found that the trial has already begun and the plaintiffs have already led evidence by examining its witnesses. It was also found that when the written statement was filed, the defendants had not asserted their right that the plaintiff has no title over the suit property. The learned Single Judge accordingly held that no case is made out for amendment of written statement and the Chamber Summons was rejected. 2. The learned counsel for the appellant has relied upon a decision of the Supreme Court in the case of Usha Balashaheb Swami and Ors. V/s. Kiran Appaso Swami and Ors., (2007) 5 SCC 602, by submitting that different consideration prevails so far as granting of amendment in written statement is concerned. 3. It is true that normally liberal approach is required to be taken while granting amendment in the pleadings more so in the case of written statement. It is required to be noted that the suit is of 1981 and the trial has already begun. In the said suit, the plaintiff is claiming possession of the suit property on the basis of title. Plaintiff is required to 3 prove his case of title by leading appropriate evidence before the Court. Ultimately, on the basis of the evidence, the Court is required to consider whether the plaintiff has proved his case on evidence. The learned counsel for the appellant submitted that in the written statement, he has already taken a plea that the plaintiff is not having title over the suit property. If that be so, it is for the appellant to request the learned Single Judge to recast the issues to the effect as to whether the plaintiff has proved his title over the suit property and for that reasons, amendment in the written statement is not required in case such averment is already taken in the written statement. So far as the impugned order is concerned, we do not find any justification in interfering with the same, as in our view, the trial of the suit is not required to be delayed. The statement of the learned counsel for the appellant is recorded that he would like to apply for recasting of the issues before the learned Single Judge, as according to him, the title of the plaintiff is denied in the written statement. On this aspect, we have not expressed any opinion and as and when such application is preferred, it is for the the learned Single Judge to decide the same in accordance with law. 4. Subject to what is stated above, the appeal is dismissed with no order as to costs. ( MRIDULA BHATKAR, J. ) ( P.B.MAJMUDAR, J.)