1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. WRIT PETITION No. 2965/2010. Sk. Parvardigar Abdul Jabbar -: VERSUS :- Sheikh Kadar Hussain (dead) through Lrs.Smt. Sagirabee S. Kadar and others. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : SEPTEMBER 09, 2010. Heard Shri B.G. Kulkarni, learned Counsel for petitioner and Shri S.J. Khandalkar, learned Counsel for respondents. This Court has already issued notice for final disposal. At final hearing stage in Regular Civil Appeal No.106/2007 the appellant/defendant (present petitioner) filed application under Order 41 Rule 27 of the Code of Civil Procedure for production of additional evidence along with another application under Order VI Rule 17 of the Code of Civil Procedure to amend his written statement. That application has been rejected on 24.02.2010 by the District Judge-2, Buldhana. 2 According to Shri Kulkarni, learned Counsel most of the amendment seek to raise pure questions of law and hence, amendment could not have been rejected. He further states that the amendment goes to the root of the controversy and hence, the impugned order is unsustainable. The documents relevant for deciding the issue sought to be raised by the amendment also therefore, ought to have been permitted to be filed. Shri Khandalkar, learned Counsel on the other hand states that the suit was filed in the year 1988 and all facts/ challenges sought to be incorporated were within the knowledge of the petitioner/defendant. Only with a view to delay the disposal of the appeal and with malafide intention, two applications are moved. Suit is of the year 1988 and it is therefore, apparent that strictly amended provisions of Order VI Rule 17 are not applicable. Perusal of paragraph no.11[b] and 11[c] pressed into service and to be added to the written statement by the petitioner shows that only legal submissions because of applicability of provisions of Bombay Prevention of Fragmentation and 3 Consolidation on Holdings Act, are sought to be raised by way of amendment. No evidence on those contentions is required. In so far as other amendments are concerned, the same raise disputed questions and therefore, require recording of some evidence. It is therefore, apparent that the Appellate Court could have permitted amendment as sought for by allowing paragraph nos. 11[b] and 11[c] only to be incorporated. It is an admitted position before this Court, that the said amendment does not call for any additional evidence or even additional documents. Hence the petitioner/defendant is permitted to amend the written statement by adding paragraph nos. 11[b] and 11[c] only. His application under Order VI Rule 17 of the Code of Civil Procedure is thus partly allowed. The view of the Appellate Court in so far as application under Order 41 Rule 27 of the Code of Civil Procedure application is concerned, does not call for any interference. Petitioner is at liberty to challenge the rejection of the said application under Order 41 Rule 27 of the Code of Civil Procedure as also rejection of part of 4 application under Order 6 Rule 17, after the final adjudication of the appeal, if any contingency therefor arise. Writ Petition is thus partly allowed. The application under Order 6 Rule 17 filed by the petitioner is partly allowed and paragraph nos. 11[b] and 11[c] as sought to be added are allowed to be incorporated in his written statement. The Appellate Court shall permit him to effect necessary amendment by 30.09.2010 and it shall permit the respondent /plaintiff to carry out appropriate consequential amendment or to file rejoinder if any, thereafter, and shall proceed further with hearing of the appeal. Hearing of the appeal is expedited and the Appellate Court shall attempt to decide the same finally as early as possible and in any case by 31.03.2011. Rule is made absolute in the aforesaid terms, with no order as to costs. Certified copy expedited. JUDGE Rgd.