SURYAKANTA ISHWAR LOHKARE Vs. ANNAPURNA

JUDGEMENT

(1.) Rule is made returnable forthwith. Heard the matter finally by consent of the learned counsels appearing for the parties.

(2.) This petition challenges the order dated 31.10.2012 passed by the learned 26th Joint Civil Judge, Junior Division, Nagpur, rejecting the application Exh. 42 filed in Regular Civil Suit No. 242/2007. The application was for amendment of written statement filed by the defendant nos. 1 to 5. The written statement was filed by them on 27.07.2007. The issues were framed on 20.01.2012. The affidavit in lieu of examination in chief was filed on 03.05.2012 and the further examination in chief of the plaintiff was recorded on 10.07.2012. The matter was fixed for the cross examination of the plaintiff. It is at this stage the application was filed for amendment of written statement on 06.09.2012.

(3.) The trial court recorded the finding that the application was filed after the commencement of trial and the perusal of the application reveals that no where there is even a whisper as to how the defendants have failed to raise such plea before the commencement of the trial. It has been held that mere inadvertence cannot be a ground to ignore the statutory provisions. The amendment proposed is not a new discovery but was prevailing since inception of suit and it could have been easily raised prior to the commencement of the trial. The finding is also recorded that the amendment does not strictly appear to be necessary for the adjudication of the present suit.