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Judgment
B.R. Gavai, J.—Rule. Rule made returnable forthwith. Heard finally by consent of the parties.
By way of present petition, the petitioner challenges the order dated 29th August, 2006 vide which the learned 2nd Jt. Civil Judge, S.D., Beed, has rejected the application for amendment to the counter-claim, below Exh.80 in Regular Civil Suit No. 406 of2001.
The respondent/plaintiff has filed the suit bearing Regular Civil Suit No. 406/2001 for declaration and perpetual injunction. In the said suit, along with the written statement, counter-claim came to be filed by the present petitioner/defendant alleging therein that the plaintiff has encroached upon a land admeasuring 16.95 mtrs. x 15.24 mtrs.
A joint application for measurement by T.I.L.R. was preferred by the parties. The said measurement was carried out on 1st April, 2005. The report was made available to the Court. After examination of the said T.I.L.R. the measurement report came to be exhibited. Thereafter, an application for amendment to the counter-claim came to be filed, so as to incorporate the area of exact measurement, as found by the T.I.L.R. in the measurement. The same came to be rejected by the learned trial Court. Hence, the present petition.
Mr. G.K. Thigale, learned Counsel for the petitioner, submits that the amendment which is sought to be carried out, was necessitated on account of the report of the T.I.L.R. of joint measurement, which was carried out as per the application of both the parties. He submits that no prejudice would be caused to the parties. He further submits that in order to bring the factual aspect before the Court, it is necessary that the amendment be carried out.
As against this, Mr. V.D. Salunke, learned Counsel for the respondent vehemently opposed the application. He further submits that the application is filed at a belated stage. He submits that the learned trial Court has rightly rejected the said application.
Mr. V.D. Salunke, learned Counsel for the respondent, has placed reliance on the case of Bhu Deo Vs. District Judge and Others, .
From the perusal of record, it can be seen that both the parties filed a joint purshis and made an application for joint measurement. After the measurement was made, the T.I.L.R. has submitted his report, which is exhibited. On account of the said measurement, the petitioner has filed an application for amendment in the counter-claim. The said amendment is necessitated on account of the report of the T.I.L.R. on joint measurement.
Insofar as the contention regarding the amendment being not permissible in view of provisions of Order 6 Rule 17 of the Code of Civil Procedure, 1908 is concerned, the said suit is instituted prior to the amendment to the Civil Procedure Code, 1908 came into force and as such the reasoning given by the Learned trial Court is not correct in law.
From the perusal of record, it reveals that the amendment would not change the nature of the suit in any way. The Apex Court in Baldev Singh and Others v. Manohar Singh and Another, 2006 (3) ACJ 17 (S.C.) : 2006 (3) CCC 573 (S.C.) : 2006 (5) All M.R.(SC) 107, has held that the Court should take a liberal view in allowing amendment.
Insofar as the prejudice that is caused to the respondent/plaintiff is concerned, the interest of the respondent/plaintiff can be safeguarded by granting him liberty to recall of the witnesses of the petitioner/defendant, if he desires to cross-examine them.
In that view of the matter, the petition is allowed.
The application of the petitioner/defendant for amendment of counter claim below Exh.80 is allowed. It is made clear that if respondent/plaintiff desires to recall any of the witnesses of the petitioner/defendant for cross-examining them, the respondent/ plaintiff would be at liberty to do so.