Bombay High Court
Pralhad S/O Dayaram Dhore vs Vitthal S/O Ashokrao Patil on 26 February, 2025
2025:BHC-NAG:1960
-- 1 -- WP 7957.2019 (J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 7957 OF 2019
Pralhad S/o Dayaram Dhore
age : 50 years, Occ. Agriculturist,
R/o at Post Shivapur, Akola, .. Petitioner
Tq & Dist. Akola
Versus
Vitthal S/o Ashokrao Patil
age : 29 years, Occ : President of
Akola District Labour Co-operative .. Respondent
Society Federation Limited,
R/o Patrakar Colony, Akola,
Tq. & Dist. Akokla
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Mr. S.A. Mohta, Advocate for petitioner.
Mr. M.G. Sarda, Advocate for respondent.
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CORAM : ABHAY J. MANTRI, J.
DATED : FEBRUARY 26, 2025
ORAL JUDGMENT
Heard. Rule. Rule made returnable forthwith. Heard
finally with the consent of the learned counsel appearing for the
parties.
(2) The petitioner is challenging the orders dated
12/10/2018 passed below Exh.21 and 03/12/2018 passed below
Exh.22 by learned 5th Joint Civil Judge Senior Division, Akola in Special
Civil Suit No.56/2017, thereby rejected the application to permit him to
amend the written statement and to file a counterclaim.
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(3) The respondent/original plaintiff has filed a suit for
damages and compensation for making false complaints against him
and publishing defamatory news in the daily newspapers, thereby
defaming his image in society. Also, the respondent was removed from
the Society without any reason. The removal would affect his
reputation in society, so he filed a suit.
(4) The petitioner/original defendant appeared and filed a
written statement on 16/11/2017. Based on the pleadings, the learned
Trial Court framed issues on 14/04/2018. On 20/07/2018, the
petitioner moved an application for permitting him to amend the
written statement to explain the facts raised in the plaint by
incorporating the same in the written statement; said application was
rejected on 12/10/2018. Thereafter, the petitioner/original defendant
moved an application on 02/11/2018 to permit him to file a
counterclaim; the said application was also rejected on 03/12/2018.
Aggrieved by both the orders, the petitioner has approached this Court
in the writ petition.
(5) Learned counsel for the petitioner/original defendant,
upon instruction, submitted that in view of the mandate laid down by
the Hon'ble Supreme Court in Ashok Kumar Kalra vs. Wing CDR.
Surendra Agnihotri and others [ SLP (C) No.23599 of 2018 ] , the
petitioner "does not press" the challenge to the order dated
03/12/2018 passed below Exh.22 to permit him to file a counterclaim.
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His statement is accepted. In view of this, the petition is dismissed as
not pressed to the extent of challenging the order dated 03.12.2018
passed below Exh. 22.
(6) He further canvassed that the petitioner has moved
another application to permit him to amend the written statement.
However, during the argument, he restricts his claim to the extent of
para 19 onwards. He "does not press" paras no. 14 and 14A in the said
amendment application. It was further argued that by way of the
proposed amendment, the petitioner was to explain the grounds raised
in the plaint and wanted to incorporate the same in his written
statement. The proposed amendment is necessary to resolve the
controversy between the parties. Therefore, he has prayed for allowing
the petition to that extent.
(7) Per contra, learned counsel for the respondent/original
plaintiff strenuously opposes the petition on the ground that the Trial
has been commenced and no reason has been stated in the application
for permitting him to amend the written statement after
commencement of the trial. He further contended that the
petitioner/original defendant has not stated that in spite of due
diligence, he could not raise the said facts in the written statement
before the commencement of the trial. Therefore, he has prayed for the
dismissal of the petition.
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(8) I have appreciated the rival contentions of the parties
and perused the impugned orders and record.
(9) It is pertinent to note that the learned counsel for the
petitioner "does not press" the order passed below Exh.22. Secondly, it
is undisputed that on 14/04/2018, the issues were framed. The
application for amendment was filed after the trial had commenced.
Therefore, as per Order VI Rule 17 of the Code of Civil Procedure
(CPC), it was incumbent on the petitioner to state that in spite of due
diligence, he could not have raised the said matter before the
commencement of the trial. However, on perusal of the application, no
reason has been given for filing the application for amendment in the
written statement after the commencement of the trial. On the
contrary, it seems that the facts in the proposed amendment were well
within the knowledge of the petitioner/original defendant before filing
the written statement. Thus, the petitioner failed to demonstrate that
in spite of due diligence, he could not have raised the said matter
before the commencement of the trial.
(10) It is a well-settled position of law that after
commencement of the trial, the party applying for amendment must
satisfy the Court that in spite of due diligence, the proposed
amendment could not have been raised before the commencement of
the trial. However, nothing has been brought on record to show that
despite due diligence, the petitioner could not have raised the said
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facts in his written statement. The reasons stated in the application
that the petitioner was to explain the grounds raised in the plaint, so
he wanted to incorporate the same in his written statement. The said
reason is not justifiable since the facts were well within the knowledge
of the petitioner before the filing of the application. Therefore, I do not
find substance in the contention of learned counsel for the petitioner in
that regard.
(11) Perused the impugned order passed below Exh.21,
wherein learned Trial Court has categorically observed that "the
contents which the petitioner has mentioned in the application by way
of proposed amendment, was well within his knowledge at the time of
filing of the written statement. No reason was brought on record as to
why he has not incorporated the same in the written statement and
further observed that the amendment would change the nature of the
suit." Therefore, the application was rejected. Considering the facts
above, no illegality or perversity is found in the impugned order; as
against this, the impugned order is well-reasoned, and no interference
is required in it. As such, the petition, being bereft of merit, stands
dismissed. The stay, if any, granted stands vacated. Inform the
learned trial Court accordingly.
Rule is discharged. No costs.
[ ABHAY J. MANTRI, J. ]
KOLHE
Signed by: Mr. Ravikant Kolhe PAGE 5 OF 5
Designation: PA To Honourable Judge
Date: 27/02/2025 14:13:58
