Writ Petition No.409 of 2014

12th June, 2014.

Petitioner Counsel: Shri J.B. GANDHI
Respondent Counsel: Shri A.R. DESHPANDE

Cases Cited:
Vidyabai and Ors. Vs. Padmalatha and Anr., 2009(1) ALL MR 471 (S.C.)=AIR 2009 SC 1433 [Para 4,5]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. Heard the matter by consent of learned counsel appearing for both the parties.

2. The petitioners challenge legality and validity of impugned order dated 22.10.2013, passed by learned 5th Joint Civil Judge Junior Division, Akola, in the pending Regular Civil Suit No.667 of 2009.

3. The facts of the case in brief, thus:

It appears that the petitioners/defendants moved an application under Order VI Rule 17 read with Section 151 of the Civil Procedure Code with a prayer for permission to amend the written statement in the suit. The prayer was strongly objected on behalf of the respondents/plaintiffs as according to the respondents/plaintiffs the plaint was instituted on 14.10.2009 and written statement by the petitioners/defendants was filed on 8.2.2010. While learned trial Judge was pleased to frame issues on 22.6.2011 and pursuant to examination-in-chief which was already filed by the respondents/plaintiffs on 12.7.2010, the plaintiffs were to be cross examined. According to the respondents/plaintiffs by way of an after thought, on 21.8.2013 a belated application for amendment of the written statement was moved which was nothing but replica of the earlier written statement and defendants tried to adopt delay tactics. When strong objection to amendment was raised in details, the learned trial Judge observed that law need not be pleaded by the petitioners/defendants and the amendment as proposed by the petitioners/defendants was not at all necessary. It was further observed that no prejudice would be caused to the petitioners/defendants if amendment as proposed is rejected because all the recitals and contents of the proposed amendment were already present in the written statement which was filed in the suit. Thus, the trial Court felt that intention of the petitioners/defendants was just to cause the delay in final disposal of the suit. That being so, the trial Court directed the petitioners/defendants to conduct cross-examination of the respondents/plaintiffs while rejecting the prayer for amendment in the written statement.

4. On behalf of the respondents/plaintiffs it is submitted that it was a suit for partition between the members of the Joint Hindu Family and there is no infirmity whatsoever in the order impugned, considering the reasons stated therein as well as considering the advanced stage of the suit in which plaint was instituted long back on 14.10.2009. Reliance is placed upon the ruling in the case of Vidyabai and ors. ..vs.. Padmalatha and anr., reported at AIR 2009 SC 1433 : [2009(1) ALL MR 471 (S.C.)] whereby the Honourable Supreme Court in paragraph Nos.7 and 8 considered the amended Civil Procedure Code with reference to Order VI Rule 17 (proviso) which prohibits an application for amendment, "once the trial has commenced, unless the trial Court comes to the conclusion that inspite of due diligence, the party applying for amendment could not have raised matter before the commencement of the trial." In other words, jurisdiction of the trial Court to allow the amendment application once the trial has commenced is taken away subject to satisfaction of the trial Court as to requirement for such amendment in the larger interest of justice.

5. In the present case, the trial Court already mentioned that the contents of the proposed amendment is already on record in the written statement filed and that no prejudice would be caused to the petitioners/defendants applying for such amendment to repeat same recitals in written statement filed after the commencement of the trial. That being so, taking into consideration the ratio in the case of Vidyabai and Ors., [2009(1) ALL MR 471 (S.C.)] cited supra, I do not find any merits in the petition.

6. In view of above, the writ petition needs to be dismissed.

7. In the result, the writ petition is dismissed. Rule is discharged accordingly. There shall be no order as to costs.

Petition dismissed.