1 W.P. 9770.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9770 OF 2011 Sadanand S/o Dattatraya Mahajan Age : 53 Yrs., Occ. Advocate R/o : Gandhi nagar, Padampura, Aurangabad. ....PETITIONER V E R S U S Avinash S/o Dattatraya Mahajan Age : 43 Yrs., Occ. Pensioner R/o : At Prachi Elderkar Colony, Vasmat Road, Parbhani. ..... RESPONDENT Mr. A.A.Joshi, Advocate holding for Mr. S.M.Gunjal, Advocate for the Petitioner. Mr. S.P.Deshmukh, Advocate holding for Mr. D.E.Padwale, Advocate for the respondent. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 21/12/2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The petitioner is the original plaintiff, who had filed Suit for possession and injunction. The said Suit came to be dismissed. Aggrieved 2 W.P. 9770.2011 - [ J ] thereby, the petitioner preferred Appeal. The said Appeal is still pending. During the pendency of the Appeal, the original plaintiff filed an application for amendment in the plaint. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed. 3. Mr. Joshi, the learned counsel for the petitioner submits that the Court below has not applied its mind while rejecting the application of the petitioner for amendment in the plaint. From the perusal of the order, it is manifest that the learned Judge has rejected the application of the petitioner as if the petitioner was the defendant and is seeking amendment in the Written Statement. This shows the total non application of mind of the learned Judge. The learned counsel submits that such an amendment can not be sustained. The learned counsel contends that the amendment is necessary and the same is clarificatory in nature. The same deserves to be allowed. The petitioner could not narrate those facts in the plaint as he could not get the document at the relevant time. 4. Mr. Deshmukh, the learned counsel for the respondent submits that in fact error has been committed only while describing the status of the parties. In stead of plaintiff, the learned Judge has stated defendant. The learned counsel contends that the respondent has moved 3 W.P. 9770.2011 - [ J ] an application for correction and the same is pending with the learned Judge. The contentions on merit have been considered by the learned Judge and has properly dealt with the application. 5. With the assistance of the learned counsel, I have gone through the pleadings, the application and the order. 6. The order shows that the Court below was considering the application for amendment as if it is made in the Written Statement and has not considered the factum of an application for amendment in the plaint. The Court has also referred to the dates of filing of the Written Statement and the number of the Suits. From the perusal of the order, it is manifest that the pleadings in the plaint were not at all considered while rejecting the application of the petitioner. 7. In light of the above, the impugned order passed below Exh. 21 in R.C.A. No. 124 of 2007 can not be sustained. The same is quashed and set aside. The lower appellate Court shall decide the application for amendment filed by the present petitioner/plaintiff in the plaint [ Exh. 21 ] in R.C.A. No. 124 of 2007. The lower appellate Court shall decide the application for amendment filed by the present petitioner/plaintiff in the plaint [ Exh. 21 ] afresh after giving opportunity to the parties to 4 W.P. 9770.2011 - [ J ] put-forth their case. 8. Rule is accordingly made absolute in above terms. No costs. 9. Needless to state that these are the observations meant for the decision of the Writ Petition and I have not considered the amendment application on merits. The trial Court shall decide the application on its own merits. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 9770.2011 - [ J ]