Bombay High Court
Rajabhau S/O Ramchandra Mhaske vs Vasant S/O Parasram Wakode on 2 September, 2021
Bench: Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1235/2019
Rajabhau s/o Ramchandra Mhaske
...Versus...
Vasant s/o Parasram Wakode
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Shri Bhushan Dafle, Advocate for petitioner
Ms Priyanka Dubey, Advocate h/f Shri M.S. Wakil, Advocate for respondent
CORAM : AVINASH G. GHAROTE, J.
DATE : 02/09/2021
1. Heard Shri Bhushan Dafle, learned Counsel for
the petitioner and Ms Priyanka Dubey, learned Counsel
holding for Mr. M.S. Vakil, learned Counsel for the
respondent.
2. The present petition challenges the order dated
30/11/2018, passed by the learned Trial Court, whereby the
application for amendment, as filed by the defendant,
seeking to amend his written statement, has been rejected.
The ground for rejection is that the proposed amendment
was well within the knowledge of the defendant at the time
of filing of the written statement at Exh.11 and if allowed
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would change the nature of the defence. Moreover, it is held
not to be necessary to decide the controversy.
3. In so far as the law on the point is concerned, it
is a settled position of law that amendment to the written
statement cannot be equated with an amendment to the
plaint. While the amendment to the plaint has to be strictly
construed and cannot be permitted once the trial has
commenced, in view of the proviso to Order VI Rule 17 of
Code of Civil Procedure, unless the parameters permitting it
to be so done are established to the satisfaction of the Court,
the amendment to a written statement has to be on the other
hand, viewed liberally. It is even permissible for the
defendant to raise inconsistent and contrary pleas.
4. The present suit is for specific performance of an
agreement, which was filed on 18/2/2015, in which the
written statement came to be filed on 23/8/2015, the issues
were framed on 07/10/2015 and the affidavit in lieu of
evidence of P.W.1/plaintiff came to be filed on 08/03/2016.
5. Ms Dubey, learned Counsel for the respondent
contends that thereafter there were several applications filed
by the defendant for adjournments, which were considered
and allowed, some with costs. She, therefore, submits that
this is merely an attempt to delay the trial of the matter and
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nothing else.
6. On 17/07/2018, the plaintiff filed on record, the
documents, which the plaintiff sought to prove in his
evidence. An application for amendment came to be filed on
17/07/2018 by the defendant/petitioner, to which a say was
given on 01/08/2018 and by the impugned order dated
13/11/2018, the same came to be rejected. The present
petition came to be filed on 11/02/2019, in which, on
18/02/2019 further stay of the proceedings were granted,
prior to which on 16/02/2019 the further chief was
recorded. The trial is, thus, stayed since 18/02/2019. In the
above background, learned Counsel for the
petitioner/defendant Shri Dafle, by relying upon Usha
Balashaheb Swami and others Vs. Kiran Appaso Swami and
others, 2007 AIR (SC) 1663, Baldev Singh and others Vs.
Manohar Singh and another, 2006 (5) ALL MR (SC) 107,
B.K.N. Pillai Vs. P. Pillai, 2000 AIR (SC) 614 and Mrs. Maria
Santana Labo (deleted) and others Vs. Cofre de Capela de S.
Joao Baptista De Umtavaddo Calangute alias Capela De Sao
Joao Batista Do, Bairro Umtavaddo and others, 2019 (3) AIR
Bom. R. 120 submits, that any inconvenience caused to the
defendant can always be compensated in terms of money
and the defendant would further undertake to ensure that
the trial is completed as early as possible. He further submits
that raising of an additional defence as is sought to be done
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would not cause any prejudice to the plaintiff as the plaintiff
has to stand on his own legs. He further submits that the
proposed amendment is necessary, in as much as, it merely is
based upon the law as applicable in the matter, however, in
order to raise a foundation for the same, it is necessary that
the facts be pleaded.
7. It is a settled position of law that the amendment
to a written statement has to be viewed in a different liberal
background altogether than that of a plaint. The strict view of
the proviso to Order VI Rule 17 of the Code of Civil
Procedure has to be considered in this background. In that
view of the matter, considering what has been held in the
judgments relied upon, permitting the amendment of written
statement, would not cause any prejudice to the plaintiff, and
any inconvenience could also be compensated in terms of
money, the pleading of foundational facts for raising a
defence permissible in law cannot be construed being
unnecessary to decide the controversy between the parties.
That being the position, in my considered opinion, the
proposed amendment needs to be allowed, however, at the
costs of Rs.25,000/- to be paid by the defendant to the
plaintiff, as a condition precedent, before carrying out the
amendment, which should be so carried out on or before
14/09/2021, upon production of a internet downloaded copy
of this order before the trial Court. It is also made clear that
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the defendant shall not delay the trial by seeking any
unjustifiable adjournments. The trial Court shall decide the
suit as expeditiously as possible and in any case within a
period of twelve months from today.
8. The writ petition is disposed of accordingly.
(AVINASH G. GHAROTE, J.)
Wadkar
