The petitioner challenged the Trial Court's rejection of an application to amend the written statement. The High Court held the amendment was belated and factual assertions were available earlier, dismissing the writ petition.
The writ petition stands dismissed.
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WP No. 11833/2015
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO.11833 OF 2015
ABDUL GAFFAR S/O ABDUL KADAR
VS
KAMLAKAR S/O MUKUNDRAO KHAIRNAR (DIED THROUGH L.RS.)
SMT. VIMALBAI W/O KAMLAKAR KHAIRNAR AND ORS.
Shrikrishna B.Solanke, Adv. For petitioner;
Mr.NP Dube, Adv. For Resp.Nos.1(A) and 1(B);
Mr.Anand Bhandari, Adv. For Respondent No.2.
CORAM : S.S.SHINDE ,J. DATE : 1st February, 2016
PER COURT :
1)Heard learned Counsel for respective
parties.
2)Learned Counsel for petitioner invited
attention of this Court to original written statement
as also additional written statement and submits that
the events, which have been subsequently occurred
from 15th January, 2015 till 7th April, 2015 are stated
in the additional written statement. Even the
evidence of defendant no.1 is yet to commence. In
case such additional written statement is accepted by
the concerned Court, no prejudice would be caused to
original plaintiff, in as much as he will have an
opportunity to file reply to the proposed additional
written statement as also to cross-examine defendant
WP No. 11833/2015
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No.1.
3)Learned Counsel for the petitioner has
placed reliance on the judgment of the Apex court in the matter of Baldev Singh & Ors. Vs. Manohar Singh & Anr. - 2006 AIR (SC) 2832 as also in the matter of Andhra Bank Vs. ABN Amro Bank N.V. And Ors. - 2007 AIR (SC) 2511 , and submits that, at any stage of the proceedings of the suit, in the interest of justice and so as to incorporate the relevant events occurred even after filing of the written statement, the proposed amendment in the written statement, by way of additional written statement came to be allowed. Therefore, the application for amendment of written statement, ought to have been allowed by the concerned Court.
4)On the other hand, learned counsel appearing
for Respondent Nos.1(A), 1(B) and 2, invited
attention of this court to the impugned order, and in
particular para 7 thereof and submits that the
evidence of the plaintiff is closed on 15.7.2014.
Thereafter on 2 dates, defendant No.1 preferred
adjournment applications below Exhibits-86 & 87. On
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3rd September, 2014, he has filed on record
evidence affidavit. Again, on 19th September, 2014
and 30 September, 2014, defendant No.1 has preferred
adjournment application. On 14th October, 2014,
defendant No. 1 has examined himself below Exh.88.
When the matter was posted for recording evidence of
deft.no.1, on 15th December, 2014, deft.No.1 has filed
affidavit of examination in chief of one Sayyed
Masood Ali at Exhibit 93. Then after eight dates of
hearing, deft.no.1 has changed the advocate and
requested for adjournment on couple of occasions and
on 11th June, 2015, he has filed an application
praying therein for allowing him for filing
additional written statement/amendment in the written
statement. Therefore, according to learned Counsel
appearing for Respondent Nos.1-A & B/original
plaintiffs, the application has been rightly
rejected and, therefore, this Court may not entertain
this petition.
5)Upon hearing the learned Counsel appearing
for the respective parties and upon perusal of the
reasons assigned by the Trial Court, this court is of
the opinion that the application filed by the present
WP No. 11833/2015
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petitioner, at belated stage, for the reasons
recorded in para No.7 of the impugned order, has
rightly been rejected by the Trial Court. So far as
the averments made in paras A, B and C of the
additional written statement is concerned, upon
careful perusal of these paras of the additional
written statement, factual assertions made in the
said paragraphs were available to the petitioner even
before filing the written statement. Therefore, it
was possible for deft. No.1 to incorporate the said
averments in the written statement itself. So far as
statements made in para B of the additional written
statements are concerned, to the extent of events
occurred, as contended by the petitioner, after
15.1.2015 till 7.4.2015, it was possible for the
deft.no.1 to show due diligence. However, it
appears that on 11th June, 2015, application was filed
for amendment of the written statement. Therefore,
keeping in view the discussion in the impugned
judgment and the ratio laid down in the judgments of
the Supreme Court and High court, referred in para 9
thereof, I am unable to persuade myself to grant
relief, as prayed by the petitioner. In that view of
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the matter, the writ petition stands dismissed.
(S.S.SHINDE)
JUDGE
BDV/
3 issues framed by the court
Whether the trial court rightly rejected the application for amendment of written statement filed by the defendant at a belated stage.
Whether the factual assertions in the proposed additional written statement were available to the petitioner before the original filing and thus compellable within the original statement.
Whether the writ petition challenging the rejection of the amendment application deserves relief.
Colour shows how this judgement treated each authority
Baldev Singh & Ors. Vs. Manohar Singh & Anr.Referred¶24
Baldev Singh & Ors. Vs. Manohar Singh & Anr. - 2006 AIR (SC) 2832 · Who else cites this
Andhra Bank Vs. ABN Amro Bank N.V. And Ors.Referred¶24
Andhra Bank Vs. ABN Amro Bank N.V. And Ors. - 2007 AIR (SC) 2511 · Who else cites this
ABDUL GAFFAR S/O ABDUL KADAR
KAMLAKAR S/O MUKUNDRAO KHAIRNAR (DIED THROUGH L.RS.) SMT. VIMALBAI W/O KAMLAKAR KHAIRNAR AND ORS.
S.S.SHINDE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court