SSP 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1231 OF 2009 Smt.Hausabai Maruti Bankar (since deceased through L.Rs) Bhagwan Maruti Bankar & others ...Petitioners vs. Anil Tukaram Bankar & another ...Respondents Mr.Nitesh Bhutekar i/b Mr.Uday Warunjikar for the petitioners Mr.K.S.Patil i/b Mr.Prashant Hagre for respondent no.1 &2 CORAM :A.S.OKA,J. DATE : MARCH 22, 2010 P.C. 1 Heard the learned counsel for the petitioners and the learned counsel for the respondent no.1. The first respondent is the original plaintiff and the present petitioners are some of the defendants. The first respondent made an application at Exhibit-42 for condonation of delay in making an application for setting aside the abatement against the defendant no.9. A separate application was also made at Exhibit-44 for setting aside the abatement and for bringing the heirs of the defendant no.9 on record. On 20th July 2007, the said applications were allowed. Thereafter, an application was made at Exhibit-46 by the first respondent for amendment of the plaint. The said application was allowed on 20th July 2007. It appears that the first respondent failed to carry out amendment within specified period of 14 days. This aspect was brought to the notice of the trial Court by the petitioners by making an application at Exhibit-61 by pointing out that the amendment has been carried out after lapse of three months. The said application was SSP 2 rejected. An application was moved by the first respondent contending that though certain amendments were granted, same have not been carried out and therefore, permission was sought to carry out the said amendment. By the impugned order, the said application has been allowed by the learned trial Judge. 2 The learned counsel for the petitioners submitted that the petitioners have brought to the notice of the Court by filing an application at Exhibit 61 that there was a gross delay on the part of the first respondent in carrying out amendment. He pointed out that even thereafter, the amendment was not properly carried out by the first respondent. He submitted that in fact the amendment earlier carried out by the first respondent could not have been carried out without permission of the Court as period of 14 days had expired. He, therefore, submitted that there was no justification for allowing application at Exhibit 64. He pointed out that no reasons have been assigned by the trial Court. The learned counsel for the first respondent supported the impugned orders and submitted that substantial justice has been done by the trial Court. 3 I have heard the submissions of the learned counsel for the parties. It is true that there is a default on the part of the first respondent. The first respondent could not have carried out the amendment after expiry of period of 14 days without permission of the Court. There is further default on the part of the first respondent as the amendments were not properly carried out. The effect of the impugned order is that the amendments which have been already permitted have been allowed to be carried out. The petitioners had filed an application at Exhibit-61 on 17th December 2007 pointing out the SSP 3 default on the part of the first respondent. The application at exhibit-64 was filed six months thereafter. In the circumstances, though it is not possible to find fault with the impugned order, it was necessary for the trial court to direct the first respondent to pay costs to the petitioners. The learned counsel for the first respondent has tendered across the bar a demand draft in the sum of Rs.5000/- drawn in favour of the second petitioner. The demand draft has been accepted by the learned counsel for the petitioners without prejudice to the rights and contentions of the petitioners. The said amount will constitute costs payable under the impugned order. 4 In view of the aforesaid circumstances, no interference is called for. Subject to payment of costs as aforesaid, the Writ Petition is rejected. JUDGE