JUDGMENT
A.H. Joshi, J.
1. Rule. Rule is made returnable and heard by consent.
2. The petitioners herein who are plaintiffs, have after the suit has proceeded without filing of written statement, moved an application for amendment. Certain words were sought to be deleted by the amendment applied for namely, “as it is desolved due to partition in between its partners”.
3. Consequent to the said amendment, the defendants who were proceeded “without written statement, submitted application along with written statement and prayed that the written statement be accepted on record.
The defendants’ application has been allowed by order below Exhibit 74 dated 6-8-2007. This order has been challenged in the present petition.
4. The grounds put forth challenged in the written statement which are narrated in extenso can be summarized as follows:
(i) That, every amendment would entitle the defendant to file additional written statement or amendment to the written statement already on record in order to answer the text which has been added;
(ii) The amendment in the written statement consequential to the amendment of plaint would not be permissible if it is of such nature that it transgresses what has been amended and attempts to make out a total new story;
(iii) When suit is proceeded without written statement, the amendment shall not entitle the defendants to file written statement to plaint which the defendants did not file within the time allowed by law or by the Court.
5. In support of submissions, learned Advocate Mr. P. F. Patni, for the petitioners, has placed reliance on two reported judgments in support of second point noted above:
(i) Judgment of the Supreme Court in case of Gurdial Singh and Ors. v. Raj Kumar Aneja and Ors. ; and,
(ii) Judgment of Delhi High Court in case of Jaimal Singh v. Smt. Chanan Devi and Ors. 11-1985(1) Current Civil Cases 305.
6. Entire thrust of submissions of the petitioner is that as in the present case since the case was proceeded without any written statement, there would be no question of any amendment at all. If at all anything is to be allowed, it would be in the form of placing on record anything that would speak about the effects of the amendment.
7. One thing has to be kept in mind that there cannot be rigid and steel framed rule in this regard. What has been added or deleted would always be the matter which would guide and govern the manner in which the amendment should be replied.
8. As in facts of the present case, the sentence which is sought to be deleted by amendment and was allowed results in taking away an objection to the very maintainability of the suit. The matter which goes to the root of the case would definitely govern the magnitude of amended written statement.
9. When on facts a suit on the basis of admission contained in the plaint was not maintainable for want of registration of partnership firm, the defendants may be led to believe that suit could not be legally proceeded with. Now when the defect fatal to suit is being smartly overcome by altering the description of status of plaintiff, not just tenor but whole complexion of suit changes, and this very fact would entitle the plaintiff (sic : defendant) to file written statement.
10. In these premise, what learned Judge has done while permitting bringing on record written statement when it was not at all filed, would on the face of it gave an impression that it would transgress the limits of the powers of the Court available to it for permitting filing of written statement. However, on what strategy the plaintiff have played and purportedly within legal frame, the Court is not powerless to assess and perceive it, and deliver justice demanded and warranted by situation, and for that purpose allow the application for filing written statement to entire plaint, which this Court holds as justified.
11. Fact that suit is prior to amendment of the Code of Civil Procedure done in 1999 too would permit such order.
12. In these premise, no interference is called for and hence rule is discharged with costs.