1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9699 OF 2009 Sharad Ramchandra Bhelke (since deceased through heirs) and others Petitioners versus Smt.Vijayalakshmi shankarrao Bhelke and ors. Respondents Mr.S.M.Railkar for petitioners. Mr.Deo for respondents 26 to 28 and 33. Mr.V.V.Pai for respondents 29 to 31. CORAM : A.S.OKA, J. DATE : 23rd April 2010 PC : 1. It is pointed out that the respondents have been duly served. Considering the nature of the reliefs sought in the petition, the same is taken up for final hearing. The challenge in this petition is to an order passed by the learned Trial Judge on 30th September 2009 on application at Exhibit-185 which was an application made by the petitioners-plaintiffs for amendment of the plaint and for adding parties has been rejected. 2. The suit has been filed by the petitioners in the year 2007 for partition and separate possession of the properties described in the suit. An application at Exhibit-185 was made by the petitioners for impleading 2 the proposed defendant nos.34 to 41. The second prayer was for making consequential amendment by incorporating paragraph 8-A in the plaint. The said paragraph was sought to be added to show that the proposed defendants were necessary and proper parties to the suit. The third amendment is for correcting the genealogy incorporated in the plaint and the last part of the amendment is for including certain properties in the list of the suit properties. There is a consequential prayer for amendment of the valuation clause of the plaint. By the impugned order, the learned Trial Judge has permitted the amendment only to the extent of clause (c) of paragraph 6 of the application for amendment. The said clause (c) of paragraph 6 relates to correction of the genealogy. The learned Judge has purported to reject other reliefs prayed for in the application for amendment. 3. It must be noted here that during pendency of the petition, the proposed defendant nos.34 to 41 have been already impleaded as parties to the suit on the basis of the application made by them and accordingly by order dated 2nd March 2010, the petitioners were permitted to amend the plaint and implead the said added defendants. 4. After having heard the learned counsel for the petitioners and learned counsel for the respondent nos.26 to 28 and 33 I find that the application for amendment ought to have been allowed in its entirety. Now, the proposed defendants have been already impleaded as parties. Therefore, clause (b) of paragraph 6 for adding paragraph 8-A of the plaint 3 will have to be permitted as the proposed paragraph 8-A seeks to describe the status of the proposed defendants and the reason why they are necessary and proper parties to the suit. The other part of the amendment which is not permitted is for including certain properties as part of the suit properties. A perusal of the impugned order shows that the said part of the amendment has not been specifically considered on merits. However, it must be noted here that the learned Judge has observed that it was necessary for the petitioners to make a separate application under Rule 10 of Order I of the Code of Civil Procedure, 1908 for adding parties. Now, addition of parties has already been done. In the application for amendment, it is stated that after institution of suit the petitioners realized that there were certain other properties which remained to be incorporated in the suit and in respect of which no prayer has been made in the suit. In the suit of the year 2007, the said request ought to have been permitted by the learned Trial Judge. In the circumstances, I find that the impugned order is illegal and there was no reason to deny the amendment. 5. Hence, I pass following order :- A) The impugned order is modified. In addition to the amendment which is already permitted, the petitioners are permitted to carry out the amendment as provided in clauses (B), (D) and (E) of paragraph 6 of application at Exhibit-185. The amendment shall be carried out within two weeks from the date on which writ of this order is received by the Trial 4 Court; B) It is obvious that after amendment is carried out, the defendants will be entitled to file additional written statement dealing with the amended plaint. All contentions of the defendants in that behalf are kept open; C) The writ petition is partly allowed in above terms with no order as to costs. (A.S.OKA, J.)