Spl.C.S.No.226/2005. 1. Ratnakar Vitthal Patvardhan and etc.1 ...

..1.. Spl.C.S.No.226/2005, Exh.113Spl.C.S.No.226/2005.1. Ratnakar Vitthal Patvardhan and etc.1. .. Plaintiffs.v/s.1. Dattaram Haribhau Sanap and etc.3. .. Defendants.ORDER BELOW EXH.1131. Perused application, say and record. Heard respectivecounsels at length.By way of this application defendants have soughtpermission to amend the written statement. Plaintiffs have resisted theapplication vide reply Exh.116. According to the plaintiff, the avermentsraised in the proposed amendment are false to the knowledge of thedefendant no.1 as the plaintiff has purchased the agricultural land in theyear 1993 with the help of defendant no.1 who was acting as an advocatefor plaintiffs. It is further contended by plaintiff that, the evidence of theplaintiff is already over and the matter is for the cross­examination of thedefendant no.1 and the proposed amendment is after thought andmoreover it is barred by the provisions of Order­6 Rule­17 of the Code ofCivil Procedure. Therefore, plaintiff prayed for rejecting the applicationwith cost.2. On the basis of rival contentions of both parties, followingpoints arise for my determination and I have given my findings againsteach of them for the reasons stated below:­PointsFindings1. Whether proposed amendmentis deserves to be allowed ?.. No.2. What order ? .. As per final order.Reasons3. As to point No.1 :­ By way of proposed amendment thedefendants wants to incorporate the plea about the status of the plaintiffas an agriculturist. It is contended by defendants that, plaintiff was inGovernment service, he was not agriculturist and therefore, he is notentitled to purchase the agricultural land without permission of

..2.. Spl.C.S.No.226/2005, Exh.113Competent Authority. It is further contended by defendants that, plaintiffhas mutated his name in respect of the agricultural land of MaujeGovardhan and Chandshi by practicing fraud and the defendants haverecently came to know about said fraud and therefore, they havepreferred the proposed amendment.4. Learned counsel for the defendants has submitted that,defendants were not having knowledge about the contents of theproposed amendment and therefore, the provision of Order­6 Rule­17 ofthe Code of Civil Procedure will not be applicable to the presentsituation. It is further argued by learned counsel for the defendants that,the proposed amendment is necessary for just decision of the suit andeven though it is inconsistent with the previous pleading of thedefendants it can be allowed. In support of his contention he has placedreliance on the case of B.K.N.Pillai, V/s. P.Pillai and another, reportedin AIR 2000 S.C. 614 and on the case of Baldev Singh & ors. etc. V/s.Manohar Singh & Anr. etc., reported in AIR 2006 S.C. 2832.5. At the outset, it would be relevant to mention here that, inthe plaint itself plaintiff has shown his status as an agriculturist and sincethe filing of the written statement i.e. 12.2.2005 defendants have notraised any objection regarding the status of the plaintiff as anagriculturist. On the contrary, in Para­25 of the written statementdefendants have specifically contended that, plaintiff is having 10 acreagricultural land at Mauje Govardhan and Chandshi. It means that,defendants were well aware about the status of the plaintiff as anagriculturist.Now, it is the contention of the defendants that, the plaintiffhas mutated his name in the 7x12 extract of the agricultural land ofMauje Govardhan and Chandshi by practicing fraud. However, theproposed contention of the defendants appears to be after thought and ithas no concern with the subject matter of the suit. It is worth to notethat, plaintiff has filed copy of draft and sale deed below list Exh.119 to

..3.. Spl.C.S.No.226/2005, Exh.113show that, plaintiff has purchased the agricultural land in the year 1993.It is very surprising that, the stamp paper for the sale deed of the year1993 were purchased in the name of defendant no.1. Thus, I find muchsubstance in the contention of the plaintiff that, the plaintiff hadpurchased the agricultural land in the year 1993 with the help ofdefendant no.1 who was acting as an advocate for the plaintiff. Viewed bythis angle also, I do not find much substance in the contention ofdefendants that, they were not having knowledge about the status of theplaintiff as an agriculturist. Therefore, the proposed amendment appearsto be after thought as well as it is nothing but an effort from the side ofthe defendants to delay the hearing of the suit.6. Apart from above facts and circumstance, it is material tonote that, the suit is at the stage of cross­examination of the defendantno.1. In view of the provision of Order­6 Rule­17 of the Code of CivilProcedure the parties to the suit can not be permitted to amend thepleadings after the commencement of the trial unless and until the party,proposing amendment, satisfied the Court that, despite due diligence thefacts pleaded in the amendment can not be brought on record. In thiscase, as stated above, defendants were aware about the status of theplaintiff as an agriculturist and the contention of the defendants that, theplaintiff has played fraud and mutated his name in the 7x12 extract doesappears to be probable and relevant, in view of the above facts andcircumstances. Therefore, the reason assign by the defendants, in thisapplication, does not satisfied that, despite due diligence defendantscould not bring the proposed facts in their written statement before thecommencement of the trial. Hence, I am of the opinion that, theproposed amendment is hit by the proviso to Order­6 Rule­17 of theCode of Civil Procedure.7. In view of the above discussion it is clear that, the proposedamendment is neither necessary for the just decision of the suit nor it isfiled before commencement of the trial and defendants have also failed

..4.. Spl.C.S.No.226/2005, Exh.113to satisfied that, despite due diligence they could not brought theproposed facts on record before the commencement of the trial.8. Much has been argued from the side of learned counsel forthe defendants in respect of “commencement of the trial” and learnedcounsel has also placed reliance on the case of Baldev Singh V/s.Manohar Singh cited supra. However, after going through the case law itis revealed that, this case law is also not helpful to the defendants. In theabove case the Hon'ble Apex Court in Para­17 of the judgment held that,“That apart, commencement of trial as used in provisoto Order­6 Rule­17 in the Code of Civil Procedure must beunderstood in the limited sense as meaning the finalhearing of the suit, examination of witnesses, filing ofdocuments and addressing of arguments.”In the case before me, as mentioned above, the evidence of the plaintiff isalready over and the defendant no.1 has also filed an affidavit of hisexamination­in­chief. Therefore, the trial has already been commencedin this matter. In this regard, reference may be made to the case ofVidyabai & Ors. V/s. Padmalatha & Anr. reported in 2009(1) All M.R.471, wherein the Hon'ble Apex Court held that, filing of an affidavit ofexamination­in­chief of the witness would amount to commencement oftrial under Order­6 Rule­17 of the Code of Civil Procedure. Therefore, thecase law cited by the learned counsel for the defendants is not helpful tothe defendants.9. Learned counsel for the defendants has also cited the case ofB.K.N.Pillai, V/s. P.Pillai cited supra I have gone through it. Its facts,circumstances and issue involved in it are entirely different than the casebefore me. It is well settled law that, the defendants can raisedinconsistent plea in the written statement. In the said case it was heldthat, application for amendment can not be rejected merely on theground of delay particularly when the amendment is not prejudicial tothe other side. However, it is not so in the case before me. In the case athand the trial is already been commenced and defendants failed to

..5.. Spl.C.S.No.226/2005, Exh.113satisfied that, despite due diligence they could not bring the proposedamendment before the commencement of the trial. Therefore, this caselaw is not helpful to the defendants. Accordingly, point no.1 is answeredin the negative.10. In view of above negative findings I proceed to pass thefollowing order :­ORDER1. Application stands rejected.2. Costs to follow the cause.Nashik. (H.K.Ganatra)Date: 20.07.2010.3 rd Jt.Civil Judge S.D.,Nashik.