:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.784 OF 2007 Arvind Vasantrao Zambre .. Petitioner. Vs. State of Maharashtra & Ors. .. Respondents. Mr.R.G.Ketkar for the petitioner. Ms.V.S.Mhaispurkar AGP for the respondent-State. Mr.S.S.Kulkarni for respondent nos.3, 5 and 7 to 19. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. DATED : 21ST FEBRUARY, 2008. DATED : 21ST FEBRUARY, 2008. DATED : 21ST FEBRUARY, 2008. P.C.: P.C.: P.C.: . Heard learned counsel for the parties. 2. Rule, returnable forthwith. 3. By consent of the parties taken up for final hearing. Ms.Mhaispurkar, learned A.G.P. waives notice on behalf of the respondent-State and Mr.Kulkarni, learned counsel waives notice on behalf of respondent nos.3, 5 and 7 to 19. None appears for other respondents, though served. 4. This petition impugns an order dated 14th December, 2006 passed by the trial Court on the application at Exhibit-258 in civil suit No.941 of 1987 by which the application for amendment has been dismissed for the reasons recorded in the impugned order and more particularly in paragraphs 4 and 5 thereof. The trial Court after considering merits of the contentions urged by the parties has recorded a finding that the proposed defendant in a suit is neither proper nor necessary party. 5. By way of an amendment the :2: :2: :2: petitioners-plaintiffs sought to implead All India Shree Shivaji Memorial Society - defendant no.20 and make consequential amendment in the body of the plaint. The application has been rejected on the grounds of delay and on merits. I perused the order impugned and other material placed before this court. It appears that defendant no.2 on 6th October, 1994 had amended the written statement filed by him on 24.2.1988 stating therein that defendant no.2 is a registered trust as per the provisions of Bombay Public Trust Act and had mentioned the P.T.R. number of the trust. Thereafter in additional written statement filed by the defendants on 20.11.2004, in paragraph 7 they made the following averments: "7. The present Defendant No.2 is the school of the registered trust -- All India Shri Shivaji Memorial Society and it is herewith submitted that the said trust is not made the party to the present suit and the suit therefore against Defendant No.2 as such is not maintainable." 6. In view of the aforesaid averments made in the written statement dated 20.11.2004 the petitioners-plaintiffs filed an application under Order 1 Rule 10 and Order 6 Rule 17 of the Code of Civil Procedure. From bare perusal of the averments made in paragraph 7 in the written statement dated 20.11.2004 it is clear that the proposed defendant is not only necessary but it is a proper party to the instant proceedings it being the Trust which runs defendant no.2 - institute. Admittedly, defendant :3: :3: :3: no.2 is not a Trust. It is true that there is a long delay in filing this application. The suit is still pending. From the facts of the case, I am satisfied that the petitioner/plaintiff did not stand to benefit by not impleading the proposed defendant as party to the suit. It appears that the plaintiff was not aware that the proposed defendant is the Trust which runs defendant no.2 - institute. Considering the delay in filing the application I am satisfied that application for amendment can be allowed with costs. Hence I pass the following order: . The writ petition is allowed. The application at Exhibit-258 filed by the petitioner-plaintiff for amendment is allowed with costs of Rs.1500/- payable to the Library of the Bar Association, Pune within a period of two weeks from today. The petitioner to carry out the amendment within three weeks from today. The trial Court shall proceed with the hearing of the suit and shall endeavour to dispose it of expeditiously. It is open for the defendants to file additional written statement, if they so desire, within four weeks from the date of carrying out the amendment. The added respondent shall have a liberty to file their written statement after service of summons within the time stipulated under Order 8 Rule 1 of the Code of Civil Procedure. The writ petition is disposed of. :4: :4: :4: (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.)