YOGESH Vs. SOW UNJWALA

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. With the consent of learned Counsel for the parties this petition is heard finally at the stage of admission.

(2.) The petitioners herein are the original defendants, who had filed an application Exh.40/D in Regular Civil Suit No.59 of 2005 seeking the leave of the Court for amending the written statement. The Trial Court i.e. the 2nd Joint Civil Judge Junior Division, Beed by order dated 26.9.2006 rejected the aforesaid application of the petitioners herein/original defendants on twin ground; (i) that the petitioners herein had remained "placid" since the date of the filing of the written statement till the decision in Misc. Civil Appeal No.61/2005 and had filed application at a belated stage introducing "new story", (ii) and as the original defendants had already opened their defence they were not entitled to seek amendment at a belated stage and the proposed amendment changes the defence of the defendants and would, therefore, change the nature of the suit.

(3.) I have heard Shri Gholap, learned Counsel appearing on behalf of the petitioners and Shri S.G. Chapalgaonkar, learned Counsel appearing on behalf of the respondent/original plaintiff. The learned Single Judge of this Court while issuing notice to the respondents on 27.11.2006 had made it clear that this Court would only be considering the proposed amendment in relation to paragraphs no.6, 7, 8 & 9 in Exh.40/D. The respondent was further noticed that this petition was likely to be decided finally at the stage of admission. Before dealing with the matter on merits, an inquiry was addressed by me to the learned Counsel appearing on behalf of the respective parties. The learned Counsel for the parties state that the suit has not proceeded further and evidence of the parties has not been recorded in this case. On perusal of the application for amendment, I find that the amendment which is proposed by the petitioners in respect of paragraphs 6, 7, 8 & 9 in Exh.40/D, which contents are reproduced in paragraphs 6, 7, 8 & 9 of the application needs to be allowed. The reasons ascribed by the Trial Court for rejecting the application for amendment are unsustainable in law.