1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7544 OF 2008 Anil s/o Vishwanath Jadhav Age 41 years, Occ. Business R/o. “Vishwadeep Hotel”, Nagar – Daud Road, Near Pargaon Phata, Mahadevwadi, Post, Loni Vyanknath Tq. Shrigonda, District Ahmednagar ...Petitioner Versus Pankaj s/o Indrajeet Bassi, Age 33 years, Occ. Bsuines, R/o. Mahadevwadi, Tq. Shrigonda, at present R/o. Near Bahiroba Temple, Shrigonda, Tq. Shrigonda District Ahmednagar ...Respondent ..... Mr. N.V. Gavare, advocate for the petitioner Mr. N.C. Garud, advocate for respondent ..... CORAM : S. S. SHINDE, J. DATE OF RESERVATION : 07.09.2009 OF JUDGMENT DATE OF PRONOUCNEMENT : 16.09.2009 OF JUDGMENT JUDGMENT:- 1 Rule. Rule returnable forthwith. The petition is taken up for final hearing immediately. 2 2 This petition is filed challenging the impugned order dated 25.11.2008 passed by the learned C.J.S.D. Shrigonda, below Exh.26 in R.C.S. No. 296 of 2001, thereby rejecting the application filed by the petitioner for amendment of written statement. 3. It is the case of the petitioner that on 31.10.2001, the respondent herein, who is original plaintiff instituted R.C.S. No. 296 of 2001 for mandatory injunction that the construction of the respondent in the suit property i.e. Gat No. 26/01 (old Gat No. 26) be demolished and the possession of the open plot be delivered to the petitioner. On 13.9.2002, the petitioner filed written statement below Exh. 14 denying the contentions raised by the respondent contending that the petitioner owns and possesses 32 Are land in Gat No.25 towards the south east corner. It is also contended that the petitioner carries on business of hotel in the said land since last ten years. It is further contended that the petitioner has never raised any construction over the suit property and has prayed for dismissal of the suit. On 10.10.2008, the present petitioner preferred application below Exh.26 for amendment of written statement as per the provision of order VI Rule 17 of C.P.C. contending that the proposed amendment is necessary for determining the real question in 3 controversy between the parties and which does not change the nature of the pleading. On 10.10.2002, the respondent herein filed say to the application below Exh.26, contending that the trail of the suit has already commenced and in view of the amended provisions of C.P.C. amendment cannot be sought and prayed for dismissal of the application. On 25.11.2008, the learned C.J.S.D. Shrigonda, has rejected the application below Exh.26 for amendment of the written statement. Hence, this writ petition. 4 Learned counsel appearing for the petitioner submitted that the amendment, which the petitioner wish to bring to the written statement is formal in nature which will not change the nature of the suit. It is further submitted that the amendment is necessary for the purpose of determining the real question of controversy as the petitioner has sought for amendment, which was in consonance to his earlier pleading in the written statement. It is further submitted that the proposed amendment does not change the nature of the suit and amendment can be carried out at any stage of the proceeding. Learned counsel further submitted that the amended provisions of Order VI Rule 17 proviso is not applicable in the present case, since the suit is filed prior to amended provisions. Learned counsel further submitted that the proviso to Rule 17 of Order VI of C.P.C. is not 4 applicable in the facts of this case since the suit was filed prior to amendment suffered to Order Vi Rule 17 of C.P.C. Learned counsel further submitted that even after commencement of trail, the amendment can be allowed. Learned counsel further invited my attention to the reported judgment of the Apex Court in the case of Baldev Singh and Ors. Vs Manohar Singh and Anr. etc. reported in 2006 (5) All M.R. (S.C.) 107 and submitted that the amendment to plaint and amendment to written statement are not necessarily governed by exactly the same principle. Learned counsel relying on the aforesaid pronouncement further submitted that in case of amendment to pleading, wide powers and unfettered discretion is conferred on courts to allow amendment in order to expeditious disposal of the suit. Learned counsel, therefore, prayed that the impugned order is not sustainable and the same may be quashed and set aside and the present petitioner may be allowed to amend the written statement. Learned counsel for the petitioner has invited my attention to the reported judgment of this Court in the case of Badrinarayan Bansilal Somani Vs. Vinodkumar K. Shan, reported in 2003 (3) Bom C.R. 231 and submitted that the amendment to order VI Rule 17 is amended in the year 2002 i.e. w.e.f. 1.7.2002 will not cover proceedings filed prior to date of amendment. 5 5 On the contrary, learned counsel appearing for the respondent submitted that the present petitioner/original defendant has already raised “defence of denial”, by filing written statement on 13.9.2002. It is denied that case of unauthorized encroachment to the extent of 20 Are land claimed himself to be owner of the property and in his possession. In short, the petitioner has claimed title of ownership and possession over the disputed property. Learned counsel further submitted that the proviso to Rule 17 Order VI of C.P.C. is applicable by virtue of clause B of sub section 2 of Section 16 of the C.P.C. (Amended Act 2002) which came into force on 1.7.2002. Admittedly, the amendment to written statement which is pleading in view of the order VI Rule 1 of C.P.C. has been filed on 13.9.2002 i.e. after enforcement of amendment Act, 2002 i.e. 1.7.2002. The term “pleading” is specifically enumerated in clause B of sub section 2 of Section 16 of C.P.C., Amendment Act 2002. The word pleading is defined in Order VI Rule 1 of C.P.C. as below;- Orders VI Rule 1:- Pleadings:- “Pleadings” shall mean plaint or written statement. Learned counsel further submitted that when the written statement is filed on 13.9.2002 i.e. after commencement of 6 amendment Act, the proviso to Rule 17 of Order VI of C.P.C. is squarely applicable in the present case. Learned counsel in support of his submission relied on para 7 of the reported judgment in the case of Mohan Maluram Agrawal Vs. Smt. Kaladevi wd/o Sawarmal Agrawal and Anr. Reported in 2007 (3) All M.R. 167 and also in the case of Vidyabai and Ors. Vs. Padamalatha and Anr. reported in 2009 (1) All M.R. 471. Learned counsel further submitted that the proposed amendment cannot be said to be pleading not within the knowledge of the original defendant while filing original written statement i.e. 13.9.2002. The reasons assigned by the original defendant cannot come within the competence of “due diligence” as contemplated by proviso of Rule 17 of Order VI of C.P.C. Learned counsel placed reliance on the judgment of the Supreme Court in the case of Chandrakanta Bansal Vs. Rajinder Singh Anand reported in 2008 (5) SCC 117. According to the learned counsel appearing for the respondent, by proposed amendment, the defendant wants to take plea of extinguishment of right to property by virtue of non filing of suit within prescribed period of limitation, hence, his plea comes within the purview of Section 27 r.w. Article 65 of the Limitation Act, 1963. It is a plea of adverse possession for all intent and purposes. These two defences are inconsistent and contrary to each others and it is not permissible to raise such defences as and when the defendant wishes. 7 The learned counsel in support of his contention has placed reliance on the judgment of the Hon’ble Supreme Court in the cases of Smt. Arundhati Mishra Vs. Sri Ramcharitra Pandey, reported in (1994) 2 SCC 29 and on the judgment of this Court in the case of Tertuliano Renato De Silva and Anr. Vs. Francisco Lourenco Bettencourt De Silva reported in 2000 (2) M.L.J. 812. Learned counsel further submitted that in the present case, the written statement is filed on 13.9.2002 by the petitioner herein issues were framed on 12.6.2003 below Exh.15 considering the original pleadings. The present respondents/original plaintiff adduced his evidence and evidence of his witnesses. The plaintiff and his witnesses were cross examined by the defendant/petitioner herein. During the course of recording of evidence, the substantive right has been accrued to the plaintiff, on the basis of which, he can get a decree and will, succeed in the suit. In order to give go by to this right accrued to the plaintiff, so also to fill lacuna in evidence, the defendant dishonestly filed application for proposed amendment to written statement at Exh.26 on 10.10.2008 i.e. after more than six years from the date of filing of written statement, when the suit is on the hearing, the original defendant/petitioner wanted to delay the matter and bring the suit in unready category. Therefore, learned counsel would submit that on the ground of delay and laches so also on the ground of malafide attitude of the defendant, the application is required to be 8 dismissed. Learned counsel in support of his contention relied on the reported judgment of the Supreme Court in the case of Union of India Vs. Pramod Gupta (dead) by L.Rs. And others reported in (2005) 12 SCC 1, and has submitted that the impugned order passed by the trial court is perfectly justified in law and no interference is warranted in extra ordinary writ jurisdiction of this Court under Article 227 of the Constitution of India. 6 I have heard the learned counsel appearing for the petitioner and the learned counsel for the respondent at great length. I have perused the pleading in the petition and the annexures thereto as well as the reply filed by the respondent and I am of the considered view that the impugned order does not suffer from any infirmity and the same is perfectly justified. The learned counsel though submitted that the amended proviso to Rule 17 of order VI of C.P.C. is not applicable to the case in hand, cannot be accepted in view of the fact that the written statement filed by the petitioner was filed after the date of amended provisions of Order VI Rule 17. Secondly, the proposed amendment, which the petitioner wish to bring to the written statement was within the knowledge of the petitioner at the time of filing of written statement in September, 2002. As concluded by the trial court, the amendment, if allowed, would change the nature of the suit. It is relevant to mention that the application for amendment was filed belatedly, when the plaintiff was examined and even cross 9 examination of the plaintiff was over. There is considerable force in the submission of the counsel for the respondent that the application for proposed amendment is filed after six years from the date of filing of the main written statement. It is an admitted position that the issues are framed on 12.6.2003. The Hon’ble Supreme court in the case of Vidyabai and Ors. Vs. Padmalatha (supra) has held that the trial commences on the date, on which the issues are framed, which is the date of first hearing. The proviso of C.P.C. can envisage taking of various steps of different steps of the proceeding. Filing of affidavit in lieu of examination in chief of the witnesses, would amount to commencement of proceeding. The Apex Court in para 7 has observed that the proviso to Order VI Rule 17 of C.P.C. is coached in mandatory form. The court’s jurisdiction to allow such an application for amendment is taken away unless condition precedent thereof for are satisfied i.e. it must come to conclusion that inspite of due diligence the parties could not have raised matter before commencement of trial. In the instant case, it is an admitted position that the issues are framed long back in the year 2003. The examination in chief of the plaintiff is over. Even cross examination is also over and at belated stage, the application is filed on behalf of the petitioner for amendment in the written statement. The trial court has observed in para 2 of the impugned order that the suit is part heard. Most of the witnesses of 10 the plaintiff are examined by him and application for amendment of written statement is filed by the defendant, at the stage, when witnesses of the plaintiff are examined. It is further observed by the trial court that the facts, which defendant are proposed to amend, were within the knowledge of the defendant, when written statement was filed at Exh.14. 7 There is no quarrel with the argument advanced by the learned counsel for the petitioner relying on the judgment of the Hon’ble Apex Court in the case of Baldev Singh (supra) that the amendment should be liberally allowed. But in the facts of this case, as rightly contended by the learned counsel for the respondent by giving dates that the written statement is filed in 2002 and issues are framed in 2003 and application for amendment is filed in October, 2008, when the plaintiff has examined his witnesses and even they are cross examined. Not only that the proposed amendment, which the petitioner wish to bring to the written statement was within the knowledge of the petitioner at the time of filing of written statement. 8 Therefore, viewed from any angle, not only that from the view point that the application for amendment is filed at belated stage, on other grounds also that the petitioner had knowledge of the contents of the proposed amendment at the time of filing of written statement and he could have brought that matter in written statement itself. That 11 apart, the counsel for the respondent is perfectly justified in contending that the amendment will cause prejudice to the interest of the original plaintiff. Therefore, in my view, the learned C.J.S.D. Shrigonda has taken possible view and no case is made out to interfere in the impugned order. Writ petition is dismissed. Rule discharged. Interim relief, if any, stands vacated. There shall be no order as to costs. *****