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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 1297 OF 2015
PETITIONER : Gorakshan Sabha, A Public Trust duly
registered under the Bombay Public Trusts
Act, 1950, through its Secretary Shri Nikhil
S/o Prabhakar Mundle, aged 45 years,
Occupation : Business, having its registered
office at Gorakshan Sabha Layout,
Dhantoli, Nagpur
ig - VERSUS -
RESPONDENT : Shri Vasantrao S/o Jagannath Makde,
Proprietor, Laxmi Mangal Karyalaya,
Gorakshan Sabha Layout/Premises,
Dhantoli, Nagpur.
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Mr. B. G. Kulkarni, Advocate for the petitioner
None appears for the respondent
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CORAM : PRASANNA B. VARALE, J.
DATE : DECEMBER 01, 2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith.
2] By the present petition, the petitioner challenges the order
passed by the learned 2nd Additional Small Causes Court, Nagpur, dated 02.02.2015 in Regular Civil Suit No. 185/2007, thereby allowing application (Exh.90) filed by the respondent/defendant seeking ::: Uploaded on - 03/12/2016 ::: Downloaded on - 05/12/2016 00:38:10 ::: 2 WP1297.15.odt amendment to the written statement.
3] Perused the order passed by this Court, dated 24.08.2016, wherein the controversy involved in this petition is referred to.
5] It was the submission of Mr. Kulkarni, the learned counsel for the petitioner that the petitioner/plaintiff has instituted a civil suit against the respondent/defendant seeking decree of possession. It may not be necessary to go into the details of the claim and counter claim of the parties or position of the respondent/defendant. Suffice to say that the suit was opposed by the respondent/defendant by filing written statement. The suit proceeded further and the parties lead their evidence.
6] On 13.01.2015, an application (Exh.90) was filed by the respondent/defendant under Order 6 Rule 17 of the Code of Civil Procedure, seeking amendment in the written statement. The said application was opposed by the petitioner/plaintiff submitting therein that the suit was instituted in the year 2007 and all the necessary steps in the process and progress of the suit are completed and the application seeking amendment in the written statement is nothing but an attempt to prolong the proceedings. It was specifically stated by the ::: Uploaded on - 03/12/2016 ::: Downloaded on - 05/12/2016 00:38:10 ::: 3 WP1297.15.odt petitioner/plaintiff that if the application for amendment in written statement is allowed, it would cause a serious prejudice to the plaintiff.
It was submitted that as the trial has already commenced, the application filed at belated stage may not be entertained. However, the learned Judge of the Small Causes Court, by observing that the proposed amendment is necessary for deciding the real controversy and no prejudice would cause to the plaintiff as the plaintiff has right to cross-examine the defendant, allowed the application subject to payment of costs of Rs.1000/-.
7] Perusal of the order sheets show that in spite of grant of sufficient opportunities to the respondent/defendant, he is not present before this Court. This Court made it clear by order dated 15.11.2016 that if none appears for the respondent on the next date, the petition would be heard and decided on its merits finally. Considering these aspects of the matter, the petition is being decided on merits.
8] The learned counsel for the petitioner was justified in submitting that the learned trial Judge has committed serious error in observing that no prejudice would be caused to the plaintiff by allowing the application. The reply filed to the application at the instance of the ::: Uploaded on - 03/12/2016 ::: Downloaded on - 05/12/2016 00:38:10 ::: 4 WP1297.15.odt petitioner/plaintiff clearly show that the application was opposed submitting firstly that the application was filed at a belated stage and secondly, the proposed amendment would not help the Court to decide the real controversy as the necessary stages such as leading evidence of parties is already completed and the trial is commenced. It was also submitted that the intention of filing the application was only to fill up the lacuna and prolonging the proceedings. The learned counsel for the petitioner invited my attention to the evidence of the defendant placed on record at Annexure-D. Perusal of the evidence of the defendant shows that it was the stand of the deponent before the trial Court that he was inducted as a tenant of the suit plot and was occupying the premises to the extent of 1487 sq.mtr. and was paying rent of Rs.6,325/-. It was further deposed by the defendant/deponent that he was permitted to make construction over said plot and the defendant carried out construction over said plot. The learned counsel, therefore, submitted that when this was a particular and peculiar stand of the defendant/deponent in his evidence, the application filed at the instance of the defendant shows that a totally contrast stand is taken by him in the application seeking amendment to the written statement.
9] In the application (Exh.90), the defendant had stated that
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premises was let out to a proprietory firm. Subsequently, there was change in the constitution of the firm i.e. from proprietory to partnership, from 1983 onwards. Thus, the amendment in the written statement sought for by way of paragraph 17 was to the effect that the suit filed by the plaintiff is not tenable as it was not filed against the partnership firm, but against the defendant. The learned counsel for the petitioner was justified in submitting that in the application, the defendant has taken somersault from his stand in the evidence tendered before the Court. The learned counsel was also justified in submitting that allowing the application for amendment in written statement thereby permitting the defendant to change his stand would certainly cause a serious prejudice to the petitioner/ plaintiff. The learned Judge of the Small Causes Court has failed to consider all these aspects. The learned counsel for the petitioner was also justified in submitting that the learned Judge clearly erred in observing that by way of proposed amendment, the defendant only wants to add a new ground and is not withdrawing his previous admission given in the written statement.
10] Considering all the above referred facts, in my opinion, the impugned order passed by the learned Additional Judge, Small Causes Court, Nagpur, is unsustainable. The writ petition thus deserves to be ::: Uploaded on - 03/12/2016 ::: Downloaded on - 05/12/2016 00:38:10 ::: 6 WP1297.15.odt allowed. In the result, the writ petition is allowed.
The order passed by the learned 2nd Additional Small Causes Court, Nagpur, dated 02.02.2015 in Regular Civil Suit NO.
185/2007 on application (Exh.90) is quashed and set aside.
The writ petition is disposed of. Rule is made absolute accordingly. No order as to costs.
Diwale JUDGE ::: Uploaded on - 03/12/2016 ::: Downloaded on - 05/12/2016 00:38:10 :::