(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 287 OF 2011 1. Dnyandeo Bhagwan Hamirge, Age : 45 years, Occupation : Agriculture, R/o. Vadhona, Taluka : Partur, District : Jalna. 2. Latabai w/o. Dnyandeo Hamirge, Age : 40 years, Occupation : Household, R/o. as above. 3. Vishnu s/o. Dnyandeo Hamirge, Age : 22 years, Occupation : Agriculture, R/o. as above. 4. Santosh s/o. Dnyandeo Hamirge, Age : 21 years, Occupation : Agriculture, R/o. as above. 5. Balasaheb s/o. Dnyandeo Hamirge, Age : 19 years, Occupation : Agriculture, .. Petitioner R/o. as above. (Original defendants) versus (2) Janabai w/o. Bhagwan Hamirge, Age : 55 years, Occupation : Agriculture & Household, R/o. Vadhona, at present R/o. Shridhar Javala, Taluka : Partur, .. Respondent District : Jalna. (Original plaintiff) ....................... Smt. Geeta L. Deshpande, Advocate, for the petitioners. Shri Rajendra S. Deshmukh, Advocate, for the respondent. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 28TH MARCH 2011 ORAL JUDGMENT : 1. Heard Adv. Smt. G.L. Deshpande, for the petitioners / original defendants, and Adv. Mr. R.S. Deshmukh, for the respondent / original plaintiff. 2. Rule. Rule made returnable forthwith. Heard finally with consent. (3) 3. The petitioners have challenged the order dated 19-11-2010, passed by the learned Civil Judge (Junior Division), Partur, below Exhibit 127 in Regular Civil Suit No. 165/2003, thereby rejecting the application filed by the petitioners seeking amendment to written statement. 4. In Regular Civil Appeal No. 140/2007, learned Principal District Judge, Jalna, allowed appeal of the present petitioners, vide judgment and order dated 19-1-2010, and remanded suit back with liberty to plaintiff (present respondent) to add all joint family properties and also permitted present petitioners (original defendants) to make consequential amendment in the written statement. The suit was expedited with a direction to decide it within six months. Thereafter, plaint came to be amended and written statement has also been amended. According to the petitioners, recording of evidence is yet to begin, while according to the respondent / plaintiff, evidence of plaintiff is already over. The petitioner at that stage moved an application and sought amendment to add certain properties contending that those properties were also joint family properties and knowledge about the same was obtained on 29-10-2010. 5. By the impugned order dated 19-11-2010, trial court (4) has rejected that application observing that it was for the plaintiff to add those properties and if the properties are not added, the plaintiff would suffer. 6. According to Adv. Smt. G.L. Deshpande, for the petitioners / original defendants, the fact that knowledge was obtained on 29-10-2010 is overlooked and there is failure to exercise jurisdiction. 7. According to Adv. Shri R.S. Deshmukh, for the respondent / original plaintiff, the impugned order itself reveals that evidence of plaintiff was over and the application of mind therein is also not perverse. 8. Perusal of the impugned order does not show consideration of the contention that the petitioners / defendants got knowledge of other properties on 29-10-2010. Those other properties are sought to be added in defence as joint family properties. The plaint admittedly does not mention those properties. Therefore, when contention that all joint family properties have not been included is required to be considered, the other properties must find mention on record. 9. The impugned order which only observes that the (5) plaintiff may suffer for fault on her part is, therefore, unsustainable and will have to be set aside. 10. In the result, the petition is allowed. (i) The impugned order dated 19-11-2010, passed by the learned Civil Judge (Junior Division), Partur, below Exhibit 127 in Regular Civil Suit No. 165/2003, is quashed and set aside. The application for amendment, as filed by the petitioners, is allowed. Necessary amendment be effected by 11th April 2011. Liberty to present respondent / plaintiff to carry out appropriate counter amendment in plaint (if necessary) and to lead additional evidence (if necessary) thereafter. (ii) Proceedings in Regular Civil Suit No. 165/2003 are expedited and trial court shall attempt to decide the same as early as possible and in any case, by 30th September 2011. 11. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp287