1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3134 OF 2009 Nagubai W/o Baburao wadikar, Age 51 years, Occu. Agri. & H.H. r/o Mali Galli, Nilanga, Tq. Nilanga, Dist. Latur. ....Petitioner. Versus 1] Ramkishan S/o Maruti Pethkar, age 35 years, Occu. Agri. R/o Malli Galli, Nilanga, Tq. Nilanga, Dist. Latur. 2] Sow. Rajabai W/o Dada Mali, Age 39 years, Occu. Agri. & H.H. R/o Devlalee, Tq. Dist. Osmanabad. 3] Sow. Kaushalyabai W/o Bhan Mali, Age 28 years, Occu. Agri. & H.H. r/o Devlalee, Tq. Dist. Osmanabad. (W.P. Dismissed as against respondent Nos. 2 & 3, as per order dated 31/07/2009) ....Respondents. Shri. A.R. Kale, Advocate h/f R.B. Deshmukh, Advocate for the Petitioner Shri. S.B. Gastgar, Advocate for the respondent No. 1. CORAM : R.K. DESHPANDE, J. DATE : 07th July, 2010. 2 ORAL JUDGMENT : 1. This Writ Petition challenges, order dated 09/04/2009 passed by the learned District Judge-1, Nilanga, Dist. Latur below Exh.38 in Regular Civil Suit No. 23 of 2005. By this order application Exh. 38 filed by one of legal representative of original defendant No. 2 for amendment in written statement has been allowed. By way of an amendment, legal representative of original defendant NO. 2 has alleged that he came to know that the original defendant No. 3 has executed will dated 07/12/2009 in his favour in the year 2008 i.e. during the pendency of appeal. The Appellate Court has allowed the amendment on the ground that no prejudice will be caused to the original plaintiff, if the amendment application is allowed and this aspect has bearing on the issue involved in this case. 2. Shri A.R. Kale, learned counsel for the petitioner has urged that it was the suit filed by the plaintiff for partition and separate possession, which has been decreed by the Trial Court. The defendant No. 1 in his deposition before the Trial Court has stated that on 07/12/2009, will was executed by the original defendant No. 3 in his favour. However, in-consistent to that, a statement is made in the proposed amendment that on 14/01/2008, for the first time he came to know that will was executed on 07/12/199. Hence, Appellate Court ought to have rejected the amendment application. 3 3. If it is a case of inconsistency between the evidence and the pleadings on record, then it would be open for the plaintiff to point out and raise such arguments in that respect. However, application for amendment proposed cannot be rejected on that count. The Appellate Court was therefore, right in allowing the application for amendment. The said order therefore, needs no interference in exercise of jurisdiction under Article 226 and 227 of the Constitution of India. Hence, Writ Petition is therefore, dismissed. However, there shall be no order as to costs. [ R.K. DESHPANDE, J. ] SDM*3134.09WP(J)