1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4071 OF 2008 (Fakir Mohd. S/o Abdul Aziz Choudhari vs. Rizvana d/o Abdul Gaffar ) WITH WRIT PETITION NO. 4072 OF 2008 (Fakir Mohd. S/o Abdul Aziz Choudhari vs. Rizvana d/o Abdul Gaffar & Ors. ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. NOVEMBER 14, 2008. Heard Shri Joshi, learned counsel for the petitioner – plaintiff and Shri Marpakwar, learned counsel for sole respondent in Writ Petition No. 4071 of 2008 and for respondents No. 1 & 3 in W.P. No. 4072 of 2008. Shri Vakil, learned counsel for respondent No.2 in W.P. No. 4072 of 2008. The challenge in both writ petitions is to the order dated 1.8.2008 passed by the Ad hoc District Judge -5, Nagpur, in Regular Civil Appeal No. 447 of 2007 and 448 of 2007, rejecting the prayer of petitioner for permission to amend the plaint. The amendment has been sought on the ground that after rejection of Civil Suit, the brother of the petitioner – plaintiff handed him over some old documents of 1969 which throw vital light on 2 the properties involved in the suits. Shri Joshi, learned counsel contends that this fact that documents were handed over to the petitioner – plaintiff by his brother has not been disputed in the impugned order. He contends that the petitioner – plaintiff would not have permitted his suit to be dismissed, had these documents been in his knowledge. Shri Marpakwar as also Shri Vakil, learned counsel for the respective respondents contend that though the documents are stated to be old, the documents have been brought into existence later on and the purpose of these documents is to infuse life in the suit, which has been dismissed by the trial Court after reasoned order. The documents ought to have been filed before trial Court and permitting such amendment at appellate stage is nothing but an attempt to fill in lacunae. With the assistance of learned counsel, I have perused the impugned order. In the impugned order, the learned lower appellate Court has observed that the application filed before it is vague and necessary details have not been given. The perusal of order also shows that lower appellate Court has tried to consider merits of the controversy also at that stage. When there was no challenge to 3 the statement that the documents have been handed over later on by the brother of the petitioner – plaintiff to him, the Court below should have considered the question whether such documents, if within the knowledge of the petitioner – plaintiff would have been suppressed by him. It should have also found out the gain, if any, to the plaintiff by producing such documents belatedly at the appellate stage. However, Shri Marpakwar and Shri Vakil, learned counsel have also argued that the application is vague and sans necessary particulars and, therefore, the respondents did not get an opportunity to point out their defence correctly. In these circumstances, I find that the interest of justice demands that the petitioner – plaintiff should be permitted to move appropriate application in accordance with law. In that eventuality the respondents also get an opportunity to meet the facts pleaded therein. For that purpose the impugned order dated 1.8.2008 passed below Exh. 9 in both appeals is hereby quashed and set aside. The petitioner – plaintiff is permitted to move appropriate application afresh. The respondents are at liberty to file their reply opposing it. The Court below to consider such an 4 application on its own merits independently, uninfluenced by the observations made by it earlier or by this Court. Writ Petitions are disposed of accordingly. No order as to costs. JUDGE *GS.