1 W.P. No.1990/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.1990 OF 2011 Shri Vilas Bhila Biraris ... PETITIONER VERSUS Anil Gokul Gurav & anr. ... RESPONDENTS ..... Shri S.S. Patil, Advocate for the petitioner Shri S.I. Nandode, Advocate for respondents ..... CORAM : S.S. SHINDE, J. DATED : 8th August, 2011. PER COURT : 1. This writ petition takes exception to the order dated 28.7.2010, passed by Jt. Civil Judge, Senior Division, Dhule, below Exh. 89 in Special Civil Suit No.24/1996. 2. Learned counsel appearing for the petitioner submits that, the application which is filed by the respondents for amendment in written statement/ counter claim is in the year 2009. In fact the counter claim is filed in the year 1996. Thereafter, the trial Court passed the final judgment and decree. Same was assailed before the appellate Court. The appellate Court set aside 2 W.P. No.1990/2011 the said judgment and decree and matter was remitted back to the trial Court. According to the counsel appearing for the petitioner, the trial Court cannot allow the subsequent application for amendment in 2009 when the matter is remitted back to the trial Court by the appellate Court and when the issues are already framed when the parties have already led the evidence. Therefore, according to the counsel for the petitioner, the impugned judgment and order passed by the trial Court requires to be set aside. According to him, allowing the respondents to amend the counter claim by inserting prayer for possession is not proper since such prayer is barred by law of limitation. Learned counsel further submits that, the amendment should be relegated from the date of filing of application and not from the date of filing counter claim. 3. On the other hand, learned counsel appearing for the respondents submits that, the reasons given in the impugned judgment and order are cogent. The Court has taken into consideration averments in the counter claim, which was already part of the record and realising that such averments are there about the prayer of possession in para 9 of the counter claim. Therefore, the trial Court rightly allowed the application of the respondents (original defendants) for amendment. He further submits that, even in first round of litigation itself, the issue Nos.9 3 W.P. No.1990/2011 and 10 is framed in respect of possession and, therefore, it cannot be said that, contentions raised in the application are new. In fact, already it forms the part of averments in the counter claim which is filed in the year 1996. The learned counsel, in support of his contention that such application for amendment can be allowed under Order VI Rule 17 of the Civil Procedure Code, placed reliance on the reported judgment of the Supreme Court in case of Nanduri Yogananda Lakshminarasimhachari Vs. Agashe Swaraswamivaru [ 1960 AIR (SC) 622 ], and submitted that, this writ petition is devoid of any merits and same may be dismissed. 4. I have given due consideration to the submissions advanced by learned counsel for the petitioner and learned counsel appearing for the respondents. Perusal of para 9 of the counter claim filed by the respondents makes it clear that, in said paragraph, there is contention of original respondent Nos.2 and 3 that the Court should order the possession of suit land to the original respondent Nos.2 and 3, to that effect averments are made in para 9 of the counter claim. Issue Nos.9 and 10 framed by the trial Court read thus : “9. Do defendants Nos.2 & 3 prove that they are entitled for perpetual injunction against the plaintiff as prayed ? 4 W.P. No.1990/2011 10. Do defendants prove that they are entitled for possession of suit properties from the plaintiff ?” 5. Therefore, the prayer of the respondents for possession was in fact appeared in para No.9 of the counter claim which was filed in 1996 and to that effect issues are also framed by the trial Court. Therefore, it cannot be said that the totally new prayers and averments are considered by way of application for amendment by the trial Court. It is true that in appeal filed by the respondents herein the appellate Court remanded the matter back by setting aside the judgment and decree passed by the trial Court, however, while disposing of such appeal, in the operative part of the order, the appellate Court has observed that, the parties will be at liberty to lead evidence afresh in respect of the counter claim. Therefore, even the appellate Court has granted liberty to the parties to lead evidence afresh in respect of the counter claim. Therefore, in view of the averments in para No.9 of the counter claim and Issues Nos.9 and 10 which are reproduced hereinabove, in my opinion, the application filed by the respondents was rightly allowed by the trial Court. After remand, the recording of the evidence was not began when the application was filed by the respondents for amendment. 5 W.P. No.1990/2011 I find considerable force in the arguments advanced by the counsel for the respondents that in somewhat similar situation, the Supreme Court, in case of Nanduri (cited supra), in the facts of that case, held that the necessary allegations are made in the plaint and requisite pleas have been raised by the appellant and also issue was framed and, therefore, parties were not taken by surprise by proposed amendment. In the present case also the averments in respect of possession are there in para No.9 of the counter claim and the trial Court, in the first round of litigation, Trial Court did frame Issues Nos.9 and 10 to that effect. Therefore, to put an end to the controversy raised by the parties, the trial Court has rightly allowed the application for amendment. No interference is warranted under writ jurisdiction. Writ Petition stands dismissed. ( S.S. SHINDE, J. ) fmp/wp1990.11