1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR W.P.NO.221 of 2010. Smt.Aruna Prakash Choudhari ..vs.. Mr.Rajesh Gopalrao Khandpasole Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JUNE 16, 2010. Heard Mr.S.R.Kapgate, learned counsel for the petitioner and Mr.V.M.Deshpande, learned Advocate for the respondent. Learned counsel for the petitioner points out that the application seeking leave to amend the written statement pointing out an event dated 17/6/2009 has been rejected because of judgment of Hon’ble Apex Court in the case reported in 2009 (4)Mh.L.J.30 (Vidyabai ..vs.. Patmalatta). He further points out that the trial court has also found that opening about which the petitioner was complaining in the amendment application already existed. Shri Deshpande, on the other hand, argues that as the trial has already commenced and affidavit of examination-in-chief is filed by the respondents, the judgment in Vidyabai ..vs.. Patmalatta has been rightly applied. In the alternative, he states that as trial court has not considered the application for amendment on merits, the said application at the most can be directed to be 2 reconsidered. The fact that the affidavit of examination-in-chief has been filed prior to 17/6/2009 is not in dispute. The petitioner/defendant has contended that on 17/6/2009 the plaintiff has created some opening in wall in dispute and because of this subsequent event, leave to amend written statement was sought. It is apparent that judgment of Hon’ble Apex Court (supra) is not therefore applicable. The trial court has also found with reference to maps on record and evidence of the respondent/plaintiff in examination in chief that such opening was already in existence. In this situation, it is apparent that the petitioner/defendant is complaining of subsequent acts on the part of respondent/plaintiff. The trial court has erroneously overlooked this fact. The question of correctness of story sought to be added was not open and trial court could not have recorded any finding on its truth or otherwise. Non- application of mind by it is thus apparent. In this situation, the application for amendment as filed by defendant is allowed. The necessary amendment be carried out by 30/6/2010. Liberty to the respondent/plaintiff to file counter affidavit/rejoinder on record in accordance with law. The trial court shall proceed with suit thereafter. Writ petition is thus allowed. No costs. JUDGE chute