1 wp11532.10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 11532 OF 2010 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. A.D. Kasliwal, Advocate for the petitioner. Mr. A.R. Rathod, Advocate for respondent. 1. Heard Advocates Mr. A.D. Kasliwal for petitioner and Mr. A.R. Rathod for respondent. Application for amendment of written statement moved by the petitioner- defendant has been rejected on the ground that it is not necessary to bring on record legal controversy between the parties and the amendment is being sought after evidence of plaintiff is over. 2. Advocate Mr. Kasliwal for petitioner states that the suit was filed for partition and separate possession. Father of the petitioner and the respondent expired and he left behind the will. The will was probated on 12.08.2010 and thereafter on 09.09.2010 this fact along with other contention about possession of valuables was sought to be incorporated by seeking amendment in 2 wp11532.10 written statement. According to him, there is no delay and the findings recorded by trial Court show non-application of mind. 3. Advocate Mr. Rathod for respondent attempted to point out this Court, the falseness in the proposed amendment or then the fabrication of will. He on this ground is strongly opposing the Petition. 4. It is apparent that grounds pressed into service by the respondent are not relevant at this stage. Merits of the proposed amendment can not be gone into. In fact when suit is for partition and separate possession, the amendment can not be said to be irrelevant. The fact of death of father is known to both brothers. Question, whether will was within the knowledge of respondent or then whether probate proceedings have been conducted legally and openly can not also be gone into at this stage. 5. The impugned order dated 27.10.2010 is therefore quashed and set aside. The petitioner-defendant is permitted to carry out amendment to his written statement by 14th February, 2011. Liberty to respondent-plaintiff to carry out appropriate consequential amendment thereafter. 6. By way of abundant precaution, it is made clear that all the contentions of respondent about the conduct 3 wp11532.10 of petitioner and his challenge to will are kept open and the Court is free to consider the same in accordance with law. 7. Petition is thus allowed. No costs. (B.P. DHARMADHIKARI) JUDGE. 27.01.2011 gas/wp11532.10