-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.7477 of 2007 M/s A.V.Bhat and Company ..Petitioner vs. 1. Mr.Mahadeo Krishnaji Raskar and others ..Respondents Shri V.A.Thorat i/b Shri S.N.Chandrachud for petitioner. Shri Ajay S.Gadkari for respondent nos. 1 to 8 CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 30th January, 2008 30th January, 2008 30th January, 2008 P.C. P.C. P.C. 1. The petitioner is original defendant no.2 in Special Civil Suit No.653 of 1988. The application for amendment was made by this defendant to its written statement and that application having been rejected, this petition under Article 227 of the Constitution of India is preferred. 2. Shri Thorat, learned Senior Counsel appearing for the petitioner contends that the application for amendment has amply clarified the purpose for which the amendment is sought to be made. The suit is for specific performance and compensation against defendant no.1 who is -2- the owner of the property. The case is that defendant no.1 agreed to sell the property to the plaintiffs under the agreement of sale dated 6th May, 1981. Defendant no.2/petitioner before me is impleaded as a party because it is stated by defendant no.1 that there is a prior agreement in favour of the petitioner/defendant no.2 dated 30th March, 1979. It is further stated that the property is developed and petitioner/defendant no.2 has constructed the flats. The flats have been sold to the prospective purchasers and there is a conveyance in favour of one Shubhnagari Cooperative Housing Society. 3. It is stated that one A.V.Bhat was a partner of the petitioner and he was looking after all the matters. He expired in an accident on 26th October, 1990. Thereafter, his wife Aruna Bhat started looking after the business and legal work. The other partners of the firm also retired. The wife could not gather complete information and give instructions to file written statement. The suit has already been listed for evidence. One of the retired partners Shri Sadanand Krishna Belwalkar informed the wife that there was one agreement -3- in the year 1987 with one Gangadhar Bhoomkar. The consideration in the year 1979 agreement was enhanced and the agreement with Bhoomkar is dated 6th March, 1987. Shri Thorat, then, contended that the copy of this agreement was discovered on search by the wife of Shri A.V.Bhat and that is how amendment is sought to the written statement only to make a reference to this later agreement and transaction covered thereby. There is no admission of any kind in the pleadings or otherwise being explained or sought to be made otherwise adversely affected. In such circumstances, the amendment should have been allowed. 4. This matter was placed before me earlier and both sides stated that there is deposition on record of the suit. The said Shri Belwalkar whose name appears in the amendment application and the proposed amendment is already examined as a witness by defendant no.2. There are certain admissions and cross examination particularly with regard to lack of any pleadings in the written statement. In such circumstances, Shri Gadkari, learned counsel appearing for respondent nos. 1 to 8/original plaintiffs was granted time to produce the copy -4- of this deposition which is now produced on record. 5. Shri Gadkari submits that the Trial Court was right in rejecting the application for amendment more particularly in the light of the material produced on record. He submits that if any amendment is granted at this belated stage, then, version of the said Belwalkar and defendant no.2 more particularly containing certain admissions, would be of no use and the suit will then proceed on the basis that there is amendment to the written statement. Shri Gadkari submits that the alleged agreement is of 6th March, 1987. The amendment application is filed on 20th February, 2007. Shri Bhat expired way back in 1990. In such circumstances, the amendment application lacks bonafide. 6. I have perused the petition and annexures thereto including the deposition of Shri Belwalkar. I have also perused the impugned order. The decision of the Hon’ble Supreme Court brought to my notice by Shri Gadkari is also perused by me. Admittedly the Special Civil Suit is of 1988 and is not covered by the amended Code of Civil Procedure. That apart, -5- with the principles laid down therein, there cannot be any dispute. The same is clearly binding upon me. However, the Trial Court in this case has gone into the merits of the amendment. It has today discussed the material that was placed before me and more particularly the affidavit in lieu of examination in chief of Shri Belwalkar. It has also opined that the said witness has deposed without any pleadings in the written statement. 7. In my view, in the peculiar facts of this case, when reference to the alleged agreement of March, 1987 has already been made in the deposition, the witness is cross examined by the respondents/original plaintiffs on that basis, then, allowing the petitioner to make a reference to the same in the written statement would have caused no prejudice. By giving appropriate clarification and compensating the plaintiffs for the delay, the amendment could have been granted. 8. It is nobody’s case that by merely allowing the defendant no.2 to incorporate the amended plea and make a reference therein to the agreement of 6th March, 1987 by itself washes -6- away the entire examination in chief or cross examination of the said witness Belwalkar. The admissions on other matters including payment of consideration and area etc. in the cross examination is by way not diluted. It is not as if that merely allowing to incorporate the pleas means that they are accepted. The version of Shri Belavalkar will have to be tested on the basis of other available material. At the most, a reference therein to the pleadings would be affected. In other words, the admission that the entire deposition was without any foundation being led in the pleadings is not totally wiped out. Ultimately, a reference to the agreement has been made both in chief and at the cross examination of this witness. The Court will look into the totality of the matter and evidence on record. By issuing appropriate clarification, in my view, the amendment application should have been granted. 9. Hence, the following order:- i) Amendment to the written statement proposed to be made by the application Exh.117 is granted. The application is allowed. The amendment be carried out within two weeks after -7- payment of costs quantified as under. ii) However, in no case, the Trial Court shall permit any additional or further evidence being led by the parties and decide the matter on the basis of oral and documentary evidence already recorded. Needless to clarify that merely because the amendment is allowed does not mean that the original plaintiffs cannot contend that the entire claim on the basis of the alleged agreement of 6th March, 1997 is time barred. Further, that no such agreement existed or that merely because a copy thereof is produced does not mean that the plaintiffs are not entitled to specific performance of their agreement. Trial Court shall make a reference to the deposition of Shri Belwalkar and merely because the amendment is allowed, the Trial Court will not and should not ignore the deposition of Shri Belwalkar and other witnesses so also admissions therein, including on the point of existence of agreement dated 6th March, 2007. With the above clarification and directing the original defendant no.2 to pay costs quantified at Rs.5000/- amendment is allowed. Costs to be paid within two weeks to the plaintiffs in the Trial Court. Amendment to be carried out within -8- two weeks from the date of payment of costs. Trial Court should endeavour that the trial is concluded as expeditiously as possible. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)