1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5314 of 2008 WRIT PETITION NO. 5314 of 2008 WRIT PETITION NO. 5314 of 2008 Padmavati Krishna Shetty & Anr. .. Petitioners versus Jaya Krishna Shetty & ors. .. Respondents ... Mr.S.S. Kulkarni for the petitioners. Mr.R.M.Hardas i/b P.N. Joshi for respondents. W I T H WRIT PETITION NO. 5011 of 2008 WRIT PETITION NO. 5011 of 2008 WRIT PETITION NO. 5011 of 2008 Jaya Krishna Shetty & ors. .. Petitioners versus Padmavati Krishna Shetty & Anr. .. Respondents ... Mr.R.M.Hardas i/b P.N. Joshi for the petitioner. Mr.S.S. Kulkarni for the respondents. CORAM : A.M.KHANWILKAR, J 2 DATED : 13th August 2008 P.C.: 1. Writ Petition no.5011 is filed by the original plaintiffs,whereas Writ Petition no.5314 of 2008 is filed by the original defendant nos.1 and 6. Both these writ petitions under Article 227 of the Constitution of India take exception to the judgement and order passed by the IInd Joint Civil Judge, Sr.Division, Pune dated 17th June 2008 below Exhibit-18 in Special C.S. No.235 of 2006. 2. Accordingly, both these petitions can be disposed of by this common order. 3. Advocate for the contesting respondents in both the respective petitions waive notice. Notice to other respondents is dispensed with as they are not contesting respondents for the purpose of present writ petition. 4. Accordingly, by consent both the writ petitions are proceeded for hearing forthwith. As short question is involved, petitions are taken up for final disposal forthwith by consent. 3 5. Both these petitions take exception to the judgement and order of the lower court on Exhibit 80 whereby the plaintiffs prayed for amendment of the plaint in terms of schedule filed along with the said application. The court below has granted this application in part. The plaintiffs have filed writ petition challenging that part of the order whereby part of the amendment is rejected. Whereas defendant nos.1 and 6 have challenged the order granting prayer for amendment in part to the plaintiffs. 6. After hearing counsel for both the parties, I am in agreement with the principal argument canvassed before this court that the trial court has misdirected itself in not deciding the application for amendment with reference to the limited enquiry to be made at this stage. In that, the trial court has addressed itself to the merits of the contention available to the respective parties for granting or not granting the respective amendment. That is not the scope of examination while considering the prayer for amendment of the pleadings. 7. Suffice it to observe that it is not necessary to dilate any further as it may affect the merits of the contention available to the respective parties. The appropriate course in my opinion is to 4 set aside the impugned judgement and order and instead relegate the parties to the trial court by restoring application Exhibit 80 to the file of the trial court for being re-considered on its own merits in accordance with law. All questions in that behalf are left open. 8. According, the impugned judgment and order is set aside. (A.M.KHANWILKAR, J)