Shriniwas Shrikisan Baheti vs Shrikisan Hiralal Baheti
2017 Latest Caselaw 3012 Bom

                                     1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                     BENCH AT AURANGABAD

                       WRIT PETITION NO.12646 OF 2016

Shriniwas s/o Shrikisan Baheti,
Age-48 years, Occu-Business,
R/o Hanuman Chouk,
Shahunagar, Beed,
Tq. and Dist.Beed                                  -- PETITIONER 

VERSUS

Shrikishan s/o Hiralal Baheti,
Age-78 years, Occu-Nil,
R/o Prem-Pannanagar,
in front of ICICI Bank, 
Kaveri Plaza,
Parali (V), Tq. Parali, Dist.Beed                  -- RESPONDENT 

WITH WRIT PETITION NO.12647 OF 2016

1. Shrinivas s/o Shrikisan Baheti, Age-48 years, Occu-Business, R/o Shahunagar, Hanuman Chouk, Beed, Tq and Dist. Beed,

2. Rohit s/o Shrinivas Baheti, Age-26 years, Occu-Business, R/o as above,

3. Amit s/o Shrinivas Baheti, Age-24 years, Occu-Business, R/o as above -- PETITIONERS

VERSUS

Shrikisan s/o Hiralal Baheti, Age-78 years, Occu-Nil, R/o Prem-Pannanagar, In front of ICICI Bank, Kaveri Plaza, Parali (V), Tq. Parali, Dist.Beed -- RESPONDENT

khs/JUNE 2017/12646

Mr.Santosh V.Munde, Advocate for the petitioners. Mr.P.N.Muley, Advocate for the respondent.

( CORAM : Ravindra V.Ghuge, J.)

DATE : 09/06/2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. In both these matters, the petitioners have challenged the

orders dated 07/09/2016 by which the application Exh.24 in RCS

No.43/2015 and Exh.20 in RCS No.20/2016 have been rejected. The

petitioners who are identical defendants in both the suits, had

invoked Order 6 Rule 17 alongwith the priviso of the CPC for seeking

an amendment to written statement.

3. I have heard the strenuous submissions of the learned

Advocates for the respective sides.

4. In both the suits, the petitioners/defendants desire to add a

short paragraph in their written statement to indicate that the

plaintiff had given certain admission in a different suit. The

khs/JUNE 2017/12646

proposed paragraphs below paragraph No.3 in application Exh.24

and 20 respectively indicate that the admission made by the original

plaintiff in RCS No.230/2013 assists the case of the defendants and

hence by following the principle of 'first plead and then prove", the

addition be permitted.

5. Learned Advocate for the respondent, who is the identical

plaintiff in both these suits, submits that whatever may be the

statement of the plaintiff in his written statement as a defendant in

an earlier suit, the petitioners can always rely upon the said

statement by placing a copy of the written statement on record. For

the said purpose, amendment is not necessary. He, therefore, prays

for dismissing both these petitions by imposing costs upon the

petitioners.

6. I have considered the submissions of the learned Advocates in

the light of the impugned orders which are practically identical.

7. The Trial Court has observed that these petitioners can

produce the copy of the written statement filed by the original

plaintiff as a defendant in RCS 230/2013 and that can be considered

while adjudicating upon the two suits at issue. It is settled law that

khs/JUNE 2017/12646

unless laches or malafides are attributed to the conduct of the

defendant, permission to amend the written statement under Order 6

Rule 17 r/w the proviso, has to be construed liberally. The

strictness in considering permission to amend the plaint would not

apply to the amendment to the written statement with the same

intensity.

8. The Trial Court could have very well permitted the petitioners

to add the said paragraph in the written statement so that the

pleadings would have been completed.

9. In the light of the above, both these petitions are allowed. The

impugned orders are quashed and set aside. The applications Exh.24

and 20 in RCS No.43/2015 and 20/2016 respectively, are allowed.

The petitioners shall amend their written statements in both the said

suits within 2 (two) weeks from today and shall not seek extension of

time for the said purpose.

10. Rule is made partly absolute in the above terms.

( Ravindra V.Ghuge, J.)

khs/JUNE 2017/12646