In a writ petition, the High Court considered an appeal against the rejection of an application for amendment in the written statement in a partition suit. The court allowed the amendment, directing payment of costs.
The application for amendment is allowed subject to payment of Rs.2,000/- cost within two weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1 W.P.No.6024/11
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.6024 OF 2011.
1. Namdeo S/o Gyanoba Kakade,
Age 71 years, Occ.Agriculture,
R/o Tandulja, Tq.and Dist.
Latur.
2. Narayan S/o Wamanrao Kakade,
Age 38 years, Occ.Agriculture,
R/o Tandulja, Tq.and Dist.
Latur.
3. Bapusaheb S/o Wamanrao Kakade,
Age 28 years,Occ.Agriculture,
R/o Tandulja, Tq.and Dist.
Latur.
... Petitioners.
Versus
Mokshada D/o Namdeo Kakade,
Age 40 years,Occ.Household,
R/o Barshi, Tq. Barshi,
Dist.Solapur. ... Respondent.
Mr.C.R.Deshpande, advocate for the petitioners.
Mr.M.D.Gite, advocate for the Respondent.
2 W.P.No.6024/11
CORAM : S.V.GANGAPURWALA,J.
Date : 22.11.2011.
ORAL JUDGMENT :
1.Heard.
2.Rule. Rule returnable forthwith. With
the consent of the parties, the petition is taken
up for final hearing.
3.The petitioner is the original
defendant. The present Respondent has filed a
suit for partition and separate possession of
agricultural land Block No.201, admeasuring 2
hectares 3 ares. The plaintiff also filed his
examination-in-chief. At that time, the present
petitioner filed an application for amendment in
the written statement. The said application for
amendment is rejected. Aggrieved thereby, the
present petition is filed.
4.Mr.Deshpande, learned counsel for the
petitioner submits that the Court has taken a
very hyper-technical approach while rejecting
3 W.P.No.6024/11
the application for amendment. The Courts are
more liberal while construing the amendment in
the written statement than that in the plaint.
For the said purpose learned counsel relies on
the judgment in the case of "Baldev Singh and
others Vs. Manohar Singh and another etc."
reported in 2006(5) ALL MR (S.C.) 107. The
learned counsel further contends that defendant
is also entitled to take inconsistent pleas but
in this case the defendants are only trying to
clarify the pleadings by putting proper acreage.
The same would not cause prejudice to the
plaintiff.
5.Mr.Gite, learned counsel for the
Respondent supports the order and states that the
amendment application is filed at a belated
stage. The trial has commenced. The plaintiff
has led his examination-in-Chief. No due
diligence is shown in view of proviso of Order 6
Rule 17 of the C.P.C., the present amendment can
not be allowed. Learned counsel relies on the
judgment of the Apex Court in the case of
"Vidyabai and others Vs. Padmalatha and another"
4 W.P.No.6024/11
reported in (2009) 2 Supreme Court Cases 409.
The learned counsel further contends that the
said amendment is prejudicial to the plaintiff
and the same can not be allowed. The trial Court
has properly considered all the aspects and
rejected the application.
6.With the assistance of the learned
counsel, I have gone through the order. There can
not be any dispute with the proposition that the
amendment in the written statement has to be more
liberally construed. Examination-in-Chief is led
but no cross-examination has been conducted. The
plaintiff will have an opportunity to meet the
case put forth by the defendants in the written
statement. The merits of the amendment
application are not required to be considered
while considering the application for amendment.
By the proposed amendment, the nature of the
defence would not change.
7.In view of the above, I am inclined to
allow the amendment. As such I pass the
following order :
5 W.P.No.6024/11
(i)The application Exh.58 filed by the
petitioner for amendment is allowed subject to
payment of cost of Rs.2,000/- (Rupees two
thousand) to the present Respondent. The said
cost shall be paid within a period of two (2)
weeks from today in the lower Court. The
plaintiff shall have liberty to file additional
examination-in-Chief to the said amended part.
(S.V.GANGAPURWALA,J.)
asp/office/wp6024.11
2 issues framed by the court
Whether an application for amendment in the written statement should be allowed after the plaintiff has filed examination-in-chief.
Whether the trial court erred in rejecting the amendment application on the ground of being filed at a belated stage.
Colour shows how this judgement treated each authority
Baldev Singh and others Vs. Manohar Singh and anotherReferred¶24
2006(5) ALL MR (S.C.) 107
Vidyabai and others Vs. Padmalatha and anotherReferred¶25
(2009) 2 Supreme Court Cases 409
1 provisions across 1 enactments
Namdeo S/o Gyanoba Kakade
Narayan S/o Wamanrao Kakade
Bapusaheb S/o Wamanrao Kakade
Mokshada D/o Namdeo Kakade
S.V.Gangapurwala
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court