1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1686 OF 2008 WRIT PETITION NO. 1686 OF 2008 WRIT PETITION NO. 1686 OF 2008 Devidas Sadashiv Divate ... Petitioner V/s. Chandrakant Sadashiv Divate & Ors... Respondents (Resp.Nos.2 to 3 are deleted as ) per Court’s order dt.5.4.07). Mr. Ajay A. Joshi, Advocate, for the petitioner. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE: 5th December,2008. DATE: 5th December,2008. DATE: 5th December,2008. P.C. P.C. P.C. 1. In the notice issued to respondent No.1, who is original plaintiff, it was specifically mentioned that the petition may be disposed of at the admission stage, but inspite of service, the respondent No.1 has not appeared. 2. The respondent, who is brother of the present petitioner, filed Regular Civil Suit no.166 of 1987 in 2 the Court of Civil Judge, Junior Division, at Sangola, seeking partition and separate possession of certain properties on the ground that those properties are the ancestral joint family properties of the plaintiff/respondent and the defendants including the defendant No.1, who is petitioner before this Court. On 5.2.2007, the defendant no.1 filed an application seeking to amend and add one paragraph in the written statement to plead that their father Sadashiv was having only one house which was also sold away in auction in execution proceeding No.36/54 and accordingly a sale deed was registered. He also filed an affidavit in evidence incorporating the same statement. After hearing the parties, the learned trial Court rejected the application on the ground of delay and on the ground that the defendant No.1 had not given any palpable explanation for not incorporating this paragraph in the written statement even though suit was pending for last 20 years. 3. It appears that the defendant No.1 had contended that the said paragraph was not typed in the written statement due to oversight and due to typing mistake. The trial Court severely criticized this reason and possibly the trial Court was right. However, it appears that defendant no.1 was not making any change in the original written statement and wanted to just add one 3 paragraph to place the facts based on certain Court record and documentary evidence. In my considered opinion, inspite of the delay, the trial Court should have, in the interest of justice, allowed the amendment and some costs could have been imposed. In my considered opinion, it will be in the interest of justice to allow the petition subject to costs so that the facts which can be proved by production of the Court record of 1954-55 may be allowed to be added. 4. Therefore, subject to payment of costs of Rs.2,000/- to the plaintiff/respondent No.1, the petition is allowed. The proposed amendment is allowed. The petitioner is also allowed to file affidavit in evidence incorporating the said amendment. In view of the amendment, both the parties shall be at liberty to lead additional evidence. He shall deposit the costs before the trial Court within one month from today. In case the petitioner fails to deposit the costs within the stipulated period, the writ petition shall be deemed to have been dismissed. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)