Judgment 1. Rule. Rule made returnable forthwith with the consent of the parties and heard. 2. This writ petition takes exception to the order dated 23rd July, 2013 passed by the District Court-5, Ahmednagar below application Exh. 61 in Regular Civil Appeal No.445of 2011. 3. The Petitioner herein is he original plaintiff and the Respondent Nos. 1 and 2 are the original defendants in Regular Civil Suit No. 179 of 2009 which is decided by the Civil Judge, Junior Division, Rahuri, District Ahmednagar by the judgment and order dated 21st October, 2011. Being aggrieved by the said judgment and order, the respondents herein filed Regular Civil Appeal No. 445 of 2011 before the District Court Ahmednagar. In the said Regular Civil Appeal, the Respondents herein filed an application Exh. 61 for amendment of written statement. By the impugned order dated 23rd July, 2013 the said application for amendment of the written statement has been allowed subject to costs of Rs.2000/- to be paid by the applicant to the non applicant. The matter is remanded back to the trial Court by the District Court with the direction to re-cast the issues on the amended written statement and after giving opportunity to both 2/13. The parties adjudicate the said issues and send back the same to the Appellate Court. The parties were directed to remain present before the trial Court on 27th August, 2013. 4. Learned counsel for the petitioner invited my attention to the grounds taken in the petition and Annexures thereto and submits that the impugned order is not sustainable, in as much as the reasons assigned by the Appellate Court are not in consonence with the mandate of Order 6 Rule 17 Proviso Code of Civil procedure. It is submitted that in fact there are no cogent reason, much less reasons to allow the application filed by the respondent for amendment of the written statement at the appeal stage. It is submitted that while passing the impugned order, to some extent, the contention of the petitioner has been accepted by the Appellate Court that the respondents have not shown due diligence at the time of filing the written statement, in as much as the proposed amendment which defendant wish to incorporate in the written statement was within the knowledge of the respondents at the time of filing written statement. It is submitted that the Appellate Court has left it to the Trial Court to re-cast the issues on the basis of amended written statement, and then after giving opportunity to the parties to lead evidence, record findings, and sent back the same to the District Court. It is submitted that such blanket order passed by the Appellate Court was de hors the provisions of the Code of Civil Procedure. The learned counsel appearing for the petitioner submits that the petition deserves to be allowed. 5. The Respondent 1A namely Namdeo Ramchandra Kadu who is appearing in person has invited my attention to the fact that the other legal heirs of deceased respondent no.1 have authorised him to plead and argue in this writ petition. He invited my attention to various documents which are placed on record along with his say, which is filed in the registry of this Court on 4th December, 2013. According to him, his wife Mrs. Alka Namdeo Kadu is died and prior to that, he was involved in providing medical treatment to her and in that process, he could not pay proper attention to the pending suit so as to include all aspects in the written statement which was filed before the Trial Court. It is submitted that he was under mental stress and also unaware of certain procedure, could not incorporate in the main written statement that, the Suit is not filed within limitation, necessary parties are not joined to the suit, description of the properties given in the suit is not correct and the Civil Court has no jurisdiction to entertain the suit. 6. It is his submission that, all these aspects which were supposed to be incorporated in the main written statement, but due to the circumstances stated above, in application below Exh. 61, same could not be incorporated. Therefore he submits that the impugned order passed by the Appellate, Appellate Court needs no interference. 7. 6. It is his submission that, all these aspects which were supposed to be incorporated in the main written statement, but due to the circumstances stated above, in application below Exh. 61, same could not be incorporated. Therefore he submits that the impugned order passed by the Appellate, Appellate Court needs no interference. 7. When the respondent no.1A i.e. Party in person was confronted with the suggestion that, if the District Court is directed to hear the parties and adjudicate the issue of limitation, non rejoinder of the parties, and the description of the property mentioned in the suit is not correct and further the Civil Court had no jurisdiction to entertain the suit, the party in person agrees to suggestion that, if all the four points which he has raised in his application are considered by the District Court by giving an opportunity to him to put forth his contention and if necessary by producing relevant documents/ evidence, he is agreeable to send the matter back to the District Court so as to decide the same on its own merits after giving opportunity to both the parties. 8. I have heard the learned counsel appearing for the petitioner and also the party in person, representing respondent nos. 1 to 1D. With the assistance of the parties, perused the grounds put forth in the petition, Annexures thereto and the impugned judgment passed by the District judge-5, Ahmednagar. 9. Indisputably, the suit is filed in the year 2009 by the petitioner plaintiff. In the event any prayer is made for amendment of the plaint or the written statement, as the case may be, the provisions of Order 6 Rule 17 proviso of the Code of Civil Procedure are applicable and therefore, whenever such application is filed, the Court is bound to refer the said provision and record the satisfaction that in spite of due diligence, the party who wish to bring the proposed amendment in the written statement could not incorporate the said amendment in the main pleadings. In absence of such exercise, it may not be appropriate to accept the prayer for amendment either in the plaint or in the written statement. 10. In absence of such exercise, it may not be appropriate to accept the prayer for amendment either in the plaint or in the written statement. 10. It is true that the amendment in the plaint and amendment in the written statement are not necessarily to be treated on same footing as held by the Supreme Court in the case of Usha Balasaheb Swami & Other. vs. Kiran Appaso Swami & Other, (2007) 5 SCC 602 that, while considering the prayer for amendment in the written statement the strict rules of pleadings available for amendment of the plaint cannot be made applicable for the amendment of the written statement and the Court should be liberal in considering the prayer for amendment in the written statement. Even in written statement, inconsistence pleas can be taken. However, in the facts of the present case, when the application for amendment to the written statement is filed by the respondents, that too at the appeal stage, it would be incumbent upon the Appellate Court to take into consideration the provisions of Order 6 Rule 17 proviso and then decide the application, however such exercise by the appellate Court is missing in the impugned order. 11. Apart from what is observed herein above, while allowing the application for amendment of the written statement in paragraph 4 of the judgment, the Appellate Court has made the following observations: “I do agree and find considerable force in the submissions of learned advocate for the respondent. Because when appellant Namdeo Kadu himself has appeared in person, in earlier proceedings, then now by raising such contentions that for want of knowledge he want to amend some important issues in the Written Statement, cannot be considered at this belated stage. Anyhow, to have just adjudication of all the issues arising in between the parties which remains to be pleaded in the written statement, the in such case obviously, the appellant will cause prejudice and the interest and justice, it will be just to given any opportunity to the appellant to carry amendment in the written statement. However, at this stage allowing the application Exh. 61, the appeal will have to be remanded back to the trial Court, so that after amendment will be carried out, it will be necessary to give opportunity to both the parties to lead evidence.” 12. However, at this stage allowing the application Exh. 61, the appeal will have to be remanded back to the trial Court, so that after amendment will be carried out, it will be necessary to give opportunity to both the parties to lead evidence.” 12. Mere perusal of the reasons recorded by the Appellate Court would make it abundantly clear that, the Appellate Court was not convinced for allowing such amendment. The Appellate Court has not adverted to the provisions of Order 6 Rule 17 proviso. Secondly, upon careful reading of the aforementioned observations of the Appellate Court, it appears that there is no conscious application of mind to the facts of the case and in such a manner, the application for amendment of the written statement at the belated stage has been allowed by the Appellate Court. In fact, it was possible for the concerned Court to give reasons by adverting to the provisions of Order 6 Rule 17 proviso. However such exercise has not been done. 13. It is true that the appeal is in continuation of the Suit and in appropriate cases, when case is made out, in accordance with relevant provisions, the Court can consider the prayer for amendment in the written statement even at the belated stage. However, in respect of the reasons assigned by the Appellate Court in para 4 of the impugned judgment, this Court is of the opinion that the Appellate Court has not given adequate and justifiable reasons for allowing a prayer for amendment in written statement. 14. Upon perusal of the application which was filed at Exh. 61 by the defendant i.e. Respondent 1A herein, it appears that respondent no.1A wanted to raise issues that the suit filed by the plaintiff was not within limitation; the plaintiff in Regular Civil Suit No. 179 of 2009 has not joined all the necessary parties, which were parties to Regular Civil Suit No. 89 of 2007; the description of the property given in the suit is not correct and the Civil Court has no jurisdiction to entertain the suit. All these points which the appellant has raised before the District Court, the District Court is empowered to adjudicate the said points and decide the same on merits in accordance with law after giving opportunity to the parties to lead evidence and put forth their contentions. All these points which the appellant has raised before the District Court, the District Court is empowered to adjudicate the said points and decide the same on merits in accordance with law after giving opportunity to the parties to lead evidence and put forth their contentions. It was not necessary for the District Court to send the matter back to the trial Court so as to Ad-judicate the aforementioned points. The District Court is empowered and had jurisdiction like the Court of original jurisdiction to entertain all points which are raised for consideration including the points raised by the appellant before the District Court. Section 107 of the Code of Civil Procedure reads thus: “107. Powers of Appellate Court? (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power? (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. (underlines added)” 15. Upon careful perusal of Sub section 2 of Section 107 CPC, the Appellate Court, subject to what is stated in Sub section 1, has the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by Civil Procedure Code on Courts of original jurisdiction in respect of suits instituted therein. Therefore it was within the jurisdiction/power of the District Court/Appellate Court to adjudicate the points raised by the appellant and decide the same on merits either way after giving opportunity to the parties to put forth their contentions. The blanket order of remand to the trial Court, that too without specifying the issues and further giving liberty to the trial Court to recast all the issues on the basis of amended written statement, would amount to de novo trial. 16. Therefore, in the light of discussion herein above, inevitable conclusion is that, the impugned order passed by the District Judge, 5 Ahmednagar below Exh. 61 dated 23rd July, 2013 cannot sustain in law. However, the respondent no.1A- party in person who is representing respondent nos. 16. Therefore, in the light of discussion herein above, inevitable conclusion is that, the impugned order passed by the District Judge, 5 Ahmednagar below Exh. 61 dated 23rd July, 2013 cannot sustain in law. However, the respondent no.1A- party in person who is representing respondent nos. 1 a to 1D has no objection if the points which he has raised in the application for amendment to the written are considered by the District Court after giving opportunity to the parties to lead evidence and put forth their contentions. Therefore this Court deem it appropriate to relegate the parties before the District Court so as to decide the appeal on all points raised by the parties including the points of limitation, non joinder of necessary parties, description of the property and further that the Civil Court has no jurisdiction to entertain the suit. 17. In that view of the matter following order:- i. The impugned order dated 27th July, 2013, passed by the District Judge Ahmednagar below Exh.61 in RCA No. 445 of 2011 is quashed and set aside. ii. The District Court is directed to consider the points raised by the appellant i.e. point of limitation, point of non joidner of necessary parries, description of the property and the Civil Court had no jurisdiction to entertain the suit. Even otherwise, the appellant is entitled to raise such issue in the appeal. iii. Since the appeal is pending, if necessary, the District Court shall frame necessary points for its determination on the aforesaid points raised by the appellant and after giving opportunity to both the sides to lead evidence, to file documents and put forth their contention, decide the appeal on its own merits, in accordance with law. iv. It is made clear that so far as merits of the Appeal is concerned, it is for the District Court to consider the merits and decide the Appeal. This Court has not expressed any opinion on the merits of the case. v. The petition stands disposed of in the above terms. vi. Rule is accordingly discharged. At this stage, Respondent- the party in person seeks liberty to apply for certified copies of the documents which are placed on record before this Court. In case, such application is filed, certified copies of those documents should be supplied by the Registry in accordance with the relevant procedure.