Shri. Prakash Hindurao Patil vs Smt. Sarsabai @ Sarnabai @ Saraswati Dnyanu Powar

Rule. Rule made returnable forthwith. With consent of parties, matter is taken up for final hearing at admission stage.

The petitioner impugns order dated 09.12.2022 passed by District Judge-3, Kolhapur in Regular Civil Appeal No.122/2019, whereby application filed by petitioner below Exhibit-20 seeking permission to amend written statement at appellate stage has been rejected.

The respondent filed Regular Civil Suit No.310/2017 against petitioner seeking decree of possession in respect of suit property. The petitioner filed written statement and refuted plaintiff’s claim.

The Trial Court after considering rival contention decreed, respondent’s suit. Aggrieved petitioner filed Regular Civil Appeal No.122/2019 before District Judge, Kolhapur. The petitioner filed an application below Exhibit-20 seeking permission to amend written statement. The Appellate Court rejected said application on ground that amendment is not necessary for purpose of determining controversy between parties, further delay in filing application for amendment is not explained. Further proposed amendment is not bonafide.

Mr Chetan Patil, learned Advocate appearing for petitioner would submit that petitioner has filed written statement in suit and in paragraph no.5 specifically pleaded that in previous suit between parties, respondent/plaintiff had filed counter claim seeking relief of injunction and omitted to claim relief of possession. Therefore, present suit is barred by law. Mr Patil would pin point that after giving necessary factual details to make out defence under Order II Rule 2 of Code of Civil Procedure, inadvertently it is pleaded that there is bar of res-judicata. In this backdrop, application was moved before Appellate Court seeking permission to amend written statement and incorporate specific defence under Order II Rule 2 of Code of Civil Procedure. The Appellate Court erroneously rejected prayer for amendment. In support of his contentions, he relies upon observations of Supreme Court in case of Raj Kumar Bhatia Vs. Subhash Chander Bhatia^{11.(2018) 2 SCC 87.}. Mr Patil would further urge that while seeking permission to amend written statement, merits of proposed amendment could not have been considered.

Per contra, Mr Manoj Patil, learned Advocate appearing for respondent supports impugned order contending that petitioner could not tender explanation as to why application for amendment was not filed before commencement of trial in suit and circumstances that precluded petitioner from bringing such amendment during course of trial.

Having considered submissions advanced by learned Advocates appearing for respective parties and perusal of impugned order it can be observed that petitioner/defendant seeks to amend written statement at appellate stage and incorporate pleading as to bar to maintain suit under Order II Rule 2 of Code of Civil Procedure. The pleading in written statement filed by petitioner shows that there are sufficient averments in paragraph no.5 indicating that petitioner wanted to plead bar of Order II Rule 2 on the ground that in Regular Civil Suit No.127/2008 between parties, respondent could have sought relief of possession, but he failed to do so. As rightly pointed out by Mr. Chetan Patil, learned Advocate appearing for petitioner, pleading in paragraph no.5 of written statement may constitute necessary averments to make out case under Order II Rule 2 of Code of Civil Procedure. In this backdrop, petitioner may substantiate such defence relying upon available pleading.

So far as impugned order is concerned, First Appellate Court is justified in rejecting application, as there is no explanation for not bringing amendment prior to commencement of trial. The petitioner cannot be permitted to bring additional pleading in pursuance to defence under Order II Rule 2 of Code of Civil Procedure, first time at appellate stage, particularly when there is no explanation as contemplated under Proviso to Rule 17 of Order VI of Code of Civil Procedure. The proposed amendment pertains to facts, which were already within knowledge of petitioner at the time of filing written statement in suit. In this background, allowing amendment at this stage would cause serious prejudice to the rights accrued in favour of respondent.

In result, no jurisdictional error can be found in impugned order. Hence, Writ Petition stands dismissed.

Rule stands discharged.