:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 621 OF 2008 Shri Nitin Ramdas Badhe and anr. ...Petitioners Versus Shri Vasant Vishnu Sambhus & Ors. ....Respondents ====== Mr.U.B.Nighot Adv. for the petitioners. Mr.G.S.Godbole, Adv. for the respondents. CORAM: S.C.DHARMADHIKARI, J. DATED: 20TH FEBRUARY,2008. P.C. P.C. P.C. : : : 1. This Writ Petition is directed against an order passed below Exhibit-71 in Reg.Civil Suit No. 156 of 2005. The petitioner’s application for amendment to the Written Statement is rejected and aggrieved thereby, he has approached this court in its jurisdiction under Article 227 of the Constitution of India. 2. It is not necessary to make any detailed reference to the facts, suffice it to say that this is a second Application for amendment. The earlier Application was :2: :2: :2: allowed by the Trial court on 8.1.2008. The further Application for amendment, according to the petitioner purports to incorporate pleas with a view to substantiate and elaborate the defence. The petition desires to place on record that the subject wall is not the exclusive property or in exclusive possession of the original plaintiff. The details with regard to the construction on Survey No.1088 has been set out. Further, it is contended that City Survey No. 1090 was an open plot on the Western side of the Wall. There are events dating back to the year 1916. In such circumstances and without in any manner desiring to delay the proceedings, that the petitioner requested for amendment to the Written Statement. 3. That request was opposed by the original plaintiff. The Trial Court by the impugned order has rejected this Amendment Application principally on the ground that the Suit has been expedited by this court and the matter has progressed to the stage of examination of the plaintiff. Therefore, relying upon the Proviso to Order 6 Rule 7 and the order of this court, the Amendment Application is rejected. :3: :3: :3: 4. The reasoning in para-5 of the impugned order, discloses that the Trial Court also rejected the Application on the ground that some contradictory and conflicting pleas are being raised. In my view, the Trial Court over looked the fact that such pleas can be incorporated in the Written Statement. The position has been amply clarified by the Hon’ble Supreme court. That apart, if the observations in para 3 of the impugned order go to show that the Dispute revolves around the agreement dated 26.11.1916, then, no prejudice would be caused by allowing the elaboration of the pleas already raised. The Proviso to Order 6 Rule 17 applying to the peculiar facts and circumstances of this case, does not arise. This is not a matter where the pleadings are sought to be amended by raising some issues and matters for the first time. In such circumstances, by putting appropriate conditions, the Application could have been granted. 5. Mr.Nighot, appears for the defendant and submits that the Defendant would not seek any amendment but :4: :4: :4: would co-operate in the expeditious disposal of the subject suit. Further, he would pay costs as are imposed by this court. Lastly, he would not examine more than one witness. In the peculiar facts of this case and when the petitioner is willing to abide by these conditions, so also, sufficiently protecting the Respondent-plaintiff, the amendment can be allowed. In the light of this Amendment, Application is granted. The impugned order is quashed and set aside on the condition that the petitioner pays costs quantified at Rs.5,000/- to the Respondent in the Trial Court within a period of two weeks from today. If costs are paid and proof thereof is produced, the amendment may be permitted to be carried out to the Written Statement. In that event, the petitioner will be allowed to examine one more witness. Needless to further clarify, that if the Amendment necessiates the original plaintiff elaborating his pleas or placing further material by examining any witness even that be permitted by the Trial court. 6. It is also needless to state that in case the conditions imposed above, are not complied with, the :5: :5: :5: impugned order stands confirmed and the Written Statement would be dismissed without any further reference to this court. 7. In the peculiar facts of this case, the time to conclude the Trial is extended to 15.5.2008. ********