1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.352 OF 2010 Digambar Ramaji Zade -vs- Rewaram Tukaram Wanode and others Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri Joharapurkar, Adv. for petitioner. Shri Bangadkar, Adv.for respondent Nos.1 & 2 Shri Jain, Adv. for respondent No.3. CORAM : B.P. DHARMADHIKARI, J. DATED : MARCH 9, 2010. 1) Heard finally. 2) The Trial Court has permitted petitioner-plaintiff to amend his suit, but then same amendment in application under Order-39 Rules-1 & 2 of Civil Procedure Code has been rejected by impugned order. By holding that provisions of Order-6 Rule-17 are not applicable. 3) Advocate Shri Joharapurkar relies upon provision of Sec.153 and 141 of Civil Procedure Code and also judgment of learned Single Judge of this Court reported at 2008 (3) Bom. C.R. 574; Rosarinho M. Fernandes & anr. - vs- Santosh Juvekar alias Santosh Zuvatkar and ors. to urge that in appropriate circumstances the application under Order-39 Rules-1 and 2 of C.P.C. can also be allowed to be amended. 2 4) Advocate Shri Bangadkar for respondents No.1 and 2 and Advocate Shri Jain for respondent No.3 support the impugned order. They pointed out that as the application is filed for temporary injunction, the same has become infructuous because of subsequent events and hence the right course for petitioner was to move fresh application under Order-39 Rules-1 and 2 of Civil Procedure Code. 5) In view of the judgment of learned Single Judge mentioned supra and also the provisions of Civil Procedure Code pointed out by Advocate Shri Joharapurkar, I do not find it necessary to consider the arguments at length. The plaint is already ordered to be amended and consequential amendment in Order-39 Rules-1 and 2 has been rejected. The fresh application for that purpose can be filed. It is apparent that there was no point in denying petitioner- plaintiff opportunity to amend the application already placed on record. This point being raised by Advocate Shri Bangadkar and Advocate Shri Jain – pertain to merits of the controversy and can be looked into by Trial Court while considering the application on merits. 6) Impugned order dated 29/09/2009 passed below Exhibit-89 is therefore quashed and set aside. Exhibit-89 is granted. Necessary amendment be effected by 29th March, 2010. Liberty to respondents to carry out similar amendment in their replies or to file additional reply affidavit, as they are advised by 5th April, 2010. Trial Court thereafter to proceed further in accordance with law. 3 7) Advocate Shri Bangadkar and Advocate Shri Jain made grievance that hearing on temporary injunction application is pending since 2006. The Trial Court shall therefore, attempt to decide that application as early as possible and in any case by 30th April, 2010. JUDGE Khunte