[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT WRIT WRIT PETITION NO.8379 OF 2006. PETITION NO.8379 OF 2006. PETITION NO.8379 OF 2006. Shri Vasant ramchandra Ratnaparkhi and Ors. ... Petitioners. Vs. Shri Gopal Ramchandra Ratnaparkhi and Ors. ... Respondents. Mr. S.V.Dhakephalkar with Mr. Reddy for the peitioners. Mr. A.P.Kulkarni for Respondent No.1. CORAM CORAM CORAM : A.A.Sayed, J. : A.A.Sayed, J. : A.A.Sayed, J. DATE DATE DATE : February 12, 2008. : February 12, 2008. : February 12, 2008. P.C. 1. Rule. By consent rule made returnable forthwith and heard finally. 2. This petition impugns the order dated 18th August, 2006 passed by the learned Adhoc Additional District Judge, Pandharpur in Civil Appeal No. 79 of 2001, whereby the Application of the Petitioners for amendment of their written statement was dismissed. 3. The Petitioners are the orig. defendant Nos. 3 & 4 in Suit No. 77 of 1989. The suit was filed by the Respondent No.1 who was the plaintiff, for partition of the suit properties and for possession. The petitioners had filed their Written Statement [2] alongwith other defendants. It is not in dispute that the suit has already been decreed and the relief of partition of the suit properties has been granted and aggrieved by this decision an Appeal being Appeal No. 79 of 2001 was filed. It is at the stage of Appeal that the Application has been made to permit the petitioners to amend their written statement. Respondent No. 1 is the son of deceased defendant No.1 in the suit, from his first wife and the petitioners are his step-brothers. 4. The contention of the petitioners is that they could not put forth their case independently in the written statement which was filed jointly alongwith their father (since deceased). The Respondent No.1 who is their step brother, filed a reply contending that the suit is of the year 1983 and is already decreed and there is no substance in the Application filed by the petitioners and the Application is filed merely to somehow deprive him from getting his share in the suit property. 5. The learned Counsel for the petitioners submitted that certain properties which were the self acquired properties of the petitioners has not been reflected properly in their original written statement, which necessitated the filing of the Application for [3] amendment of the written statement even though the matter is at the stage of appeal. He has relied upon a decision in case of B.P.C.L. VS. PRECIOUS FINANCE INVESTMENT, reported in 2007(1) Mh.L.J. 331 to contend that amendemnt to the plaint can be allowed even at thie stage of Appeal. 6. The learned Counsel for the respondent No. 1 on the other hand has invited my attention to the reply filed by the respondent No.1 and also the relevant portions where the learned Judge has dealt with the issue regarding the properties which were stated to be the self acquired properties and not the joint family properties. The learned Counsel for the respondent No.1 submitted that the petitioners had amended their written statement in the year 1992 and even at that time they had an opportunity to incorporate this plea which has ben raised in the present application. He further submitted that in any event, this plea regarding the self acquired property already finds place in the original written statement. The learned Counsel for the Respondent No.1 has placed reliance upon the case of HEERALAL VS. KALYANMAL AND ORS. reported in (1998) 1 SCC 278 in support of the case of the Respondent No.1. 7. The observations in B.P.C.L’s case cited by the [4] learned Counsel for the petitioners, in fact, support the case of the respondent No.1. The Single Judge of this Court in the said decision has observed thus :- "... On careful reading of the language of the proviso to Rule 17, Order 6 of Civil Procedure Code, it is clear that it casts an obligation on the party applying for amendment, after commencement of the trial, to offer an explanation to the satisfaction of the Court so as to come to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial ....." It has been further observed in the said decision as follows : "....(xvii) The Court can allow amendment of pleadings even at the appellate stage for the purpose of determining the real question in controversy between the parties or if it is necessary for the effective decision of the case. However, the delay in seeking an amendment must be explained satisfactorily and that it should not cause injustice to the other side or it should not affect the right already [5] accrued to the other side. At appellate stage none of the parties could be allowed to withdraw the admissions or pleadings, if the rights are accrued to the other side." 8. The expression "due deligence" and "explained satisfactorily" used in the above decision are significant. The Judgment cited by the learned Counsel for the Respondent No.1 also is on the same lines. However, in the present case, the petitioners have not acted with due deligence and the reasons given by them are far from satisfactory. 9. Considering the rival contentions of the parties and the material placed before me, I am of the view that the impugned order cannot be faulted. The learned trial Judge whilst dismissing the application, has rightly observed that the Application cannot be said to be bonafide. The explanation for the delay in filing the Application are also far from satisfactory. No case is made out for interference in the impugned order in exercise of writ jurisdiction under Article 227 of the constitution. Consequently, the petition is dismissed. Rule discharged. ..... [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.] [6] February 13, 2008. To, [7] The Prothonotary & Senior Master, High Court, O.S., Bombay. Submitted through the Honourable Principal Secretary to the Honourable the Chief Justice. Sub. : Application for one month Earned Leave. ============================================== Respected Madam, I have to submit that S.S.C. Examination of my daughter Amruta is scheduled from 11th of March, 2008 and in order to help her by taking Revision of all the subjects my assistance is very much necessary as my wife is sick and has also not attended the office since last more than one year. I being a post graduate and could guide my daughter and get her prepared for examination and that it is also a part of my family obligation. Considering the need, I request Your Honour kindly to sanction Earned leave to me for one month i.e. from 20.2.2008 to 19.3.2008 and oblige. Yours faithfully, [D.V.Godbole] PA to A.A.Sayed, J.