:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 1452 OF 2008 Shri Jaya Krishna Shetty ...Petitioner Versus Smt.Padmavati Krishnna Shetty and Ors. ...Respondents ====== Mr.Kishore Patil i/by. Mr.P.N. Joshi, Adv. for the petitioners. Mr.P.K.Hushing, Adv. for respondent no.6. CORAM: S.C.DHARMADHIKARI, J. DATED: 4TH MARCH, 2008. P.C. P.C. P.C. : : : 1. Mr.Hushing appears on Notice for Respondent no.6. Mr.Hushing states that he has instructions to appear for Respondent No.1 as well. Mr.Hushing seeks one weeks time to file Vakalatnama for Respondent no.1. Time granted. Respondent nos.2 to 5 are Original Defendants supporting the petitioner-plaintiff. 2. The petitioner-plaintiff has filed Special Civil Suit no. 235 of 2006 in the Trial Court for partition :2: :2: :2: and separate possession. The Plaintiff is claiming one-seventh share in the properties described in para-1 of the plaint. 3. The Amendment Application (page 43) was moved by the petitioner-plaintiff with a view to include one more property in the litigation. The petitioner contended that contesting Defendant no.6 (Respondent no.6 to this Writ Petition) has purchased a Flat in the State of Karnataka and the Sale-Deed with regard to the same has been acquired by him after the suit was filed and was pending. Praying thus, the Amendment application was moved. 4. It was opposed by Respondent no.6. While not denying that the property was acquired, it is urged by the Defendant no.6 that the same has been acquired from independent business and income. In other words, the property is a self acquired property of Respondent no.6. 5. The Trial Court rejected the Application by holding that the matter is time bound, issues are already :3: :3: :3: framed, the Trial has commenced and last chance was granted to the petitioner-plaintiff to file an Affidavit-in-lieu of examination-in-chief. 6. In my view, considering the above peculiar facts and when the sale was not to the knowledge of the petitioner when the suit was filed and copy of the Sale-Deed being acquired later, the amendment should have been granted by compensating the Respondent no.6. In other words, for the delay cost could have been awarded and the amendment ought to have been granted. In my view, no prejudice is likely to be caused to Respondent no.6, merely because the amended pleas include another property in the Suit. As to whether the property could be included in the suit claim or not, are matters which are not decided at this stage. They will be decided at an appropriate stage. All pleas in that behalf are kept open. 7. In the result, the Writ petition succeeds. The order under challenge is set aside. The Amendment Application is allowed, subject to the petitioner-plaintiff paying costs quantified at :4: :4: :4: Rs.2,000/- for the delay. Costs to be paid to Respondent no.6 within a period of 2 weeks from today. if the costs are paid, then the plaint shall be allowed to be amended. Additional Written Statement to be filed within a period of 2 weeks from the date the amended plaint is received. The Affidavit-in-lieu of examination-in-chief shall be filed on/or before 15.4.2008. After the same is filed, the Suit to proceed in accordance with law. sd/- *******