Disposed

Parmeshwar Ashruba Matre and Another v. Kalyan Baburao Matre and Another

Bombay HC7 Jul 2014WP/5278/2013

Case brief

AI extract

What is this about?

The High Court quashed the trial court's order rejecting an application for amendment of the written statement under Order VI Rule 17 CPC, granting the amendment as necessary for justice despite the delay.

What did the court decide?

The order dated 1st January, 2013 quashing Exh. 72 is quashed; amendment order Exh. 72 granted subject to costs of Rs. 3,000/-.

Parmeshwar Ashruba Matre and Another Vs Kalyan… — Civil Procedure and Limitation | Bombay HC (2014)

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WP5278.2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD.

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WRIT PETITION NO. 5278 OF 2013

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Parmeshwar Ashruba Matre and another

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... Petitioners

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Versus

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Kalyan Baburao Matre and another

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...Respondents

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Mr G. K. Thigale (Naik), Advocate for petitioners Mr B. R. Sable, Advocate for respondent

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CORAM : N. W. SAMBRE, J. DATED : JULY 7^TH , 2014.

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PER COURT : -

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The respondent to the present petition is plaintiff in Regular Civil Suit No. 1 of 2009. The said suit is for possession of the land which is encroached by the defendants.

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The defendants to the said suit have filed their written statements on 20th April, 2009.

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Thereafter, the defendants moved an application on 9th October, 2012 for amendment of written statement under Order VI Rule 17. The said application was objected by the present respondents. As such, the learned trial Court i.e. Civil Judge Junior Division, Wadwani, Dist. Beed, by an order dated 1st January, 2013, rejected the said application. The order dated 1st January, 2013 is impugned in the present petition by the

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WP5278.2013

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petitioners-defendants on the ground that the order speaks the reason of delay. He has invited my attention to the observations made by the learned trial Judge in paragraph '7' of the order, which reads thus:

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"Admittedly the defendants filed their written statement on 20th April, 2009. Admittedly, the this court has passed the judgment in Regular Civil suit No. 208 of 2008 on 24th January, 2011. Hence the facts which have been observed by this court may not be known to the defendants at the time of filing the written statement. But that fact that, alongwith the plaintiff and defendants there are other holders in Block No. 335 is well within the knowledge of the defendants. Hence thee is no reason for defendants to say that they came to know about the proposed facts only after decision in Regular Civil Suit No. 208 of 2008. hence the fact about other holders being known to the defendants and as in this suit the plaintiff has concluded his evidence and defendant has filed his affidavit affidavit of examination-in-chief, certainly in this suit, the trial has commenced".

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From the above it can be gathered that what is sought to be gained by way of amendment is; bringing on record fact about the judgment in Regular civil Suit No. 208 of 2008 decided on 24th January, 2011 and necessity of measurement of Survey No. 335. The amendment sought to be incorporated in the written statement, was filed on 20th April 2009, which admittedly prior in point of time to that of adjudication of the Regular Civil suit No. 208 of 2008.

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Merely because the proceedings in the suit have commenced that is to say the evidence of the plaintiff is over and the examination-in-

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WP5278.2013

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chief of the defendant is already filed, that does not dis-entitle the present respondent to move an application for amendment. What is required to be looked into as to whether there was any intention on the part of the petitioner to delay the proceedings. Perusal of the amendment reflects that the defendant wants to bring on record the fact which is necessary for adjudication of the issue involved in the petition though the defendant has taken that step at belated stage.

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In my opinion it will be in the interest of justice if the application moved by the defendant for amendment of written statement Exh. 72 is granted.

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As such, the order dated 1st January, 2013 passed below Exh. 72 is quashed and set aside. The amendment as is prayed by the defendant stands granted subject to costs of Rs. 3,000/- (Rupees Three Thousand only). The amendment be carried out within a period of 15 days. The payment of costs shall be condition precedent.

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Writ Petition is disposed of in above terms.

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Punde

Parmeshwar Ashruba Matre and Another v. Kalyan Baburao Matre and Another

Case brief

What is this about?

What did the court decide?

Parmeshwar Ashruba Matre and Another v. Kalyan Baburao Matre and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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