1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.7574 OF 2009 Mohd. Idris s/o Mohd. Ibrahim, age: 41 years, Occ: Tailor, R/o House No.1-23-44, Deoli Bazar, Aurangabad, Taluka and District Aurangabad. Petitioner Versus 1 Mohd. Ibrahim s/o Mohd. Nizamuddin, age: 68 years, Occ: Business, R/o House No.1-23-44, Deodi Bazar, Aurangabad. 2 Mohd. Ismail s/o Mohd. Nizamuddin, age: 48 years, Occ: Business, R/o House No.1-23-44, Deodi Bazar, Aurangabad. 3 IKON Builders & Developers, through its partners. 3A) Mohd. Zakiuddin s/o Sirajuddin Siddiqui, age: 24 years, Occ: Business, R/o Behind Siraj Function Hall, Manzsoorpura, Aurangabad. 3B) Imtiaz Khan s/o Sardar Khan, age: 28 years, Occ: Business, R/o Sardar Tower, Peer Bazar Road, Osmanpura, Aurangabad. 4) Aurangabad Municipal Corporation, through Municipal Commissioner, Aurangabad Municipal Corporation, Aurangabad. 5) Assistant Director of Town Planning, Aurangabad Municipal Commissioner, Aurangabad. Respondents 2 Mr.A.D.Kasliwal, advocate for petitioner. Mr.A.P.Bhandari, advocate holding for Mr.R.M. Pardeshi, advocate for Respondents No.1, 2, 3A & 3B. Respondents No.4 & 5 served. CORAM : R. M. BORDE, J. DATE : 22nd March, 2010. ORAL JUDGMENT : 1 Heard Shri A.D.Kasliwal, learned Counsel for petitioner and Shri A.P.Bhandari, learned Counsel holding for Shri R.M. Pardeshi, advocate for Respondents No.1, 2, 3A and 3B. Respondents No.4 & 5, though served, are absent. 2 Rule, made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 3 An application presented by plaintiff - petitioner herein seeking amendment to the plaint has been turned down by Joint Civil Judge, Senior Division, Aurangabad, in view of the order passed on 06.10.2009 and said order is subject matter of challenge in this petition. 4 Plaintiff presented a suit bearing Special Civil Suit No.280/2008 claiming relief of declaration of ownership and perpetual injunction in respect of property belonging to the family of plaintiff and defendants. It is not necessary to 3 go into factual details of the matter, suffice it to say that on 09.06.209, plaintiff presented an application seeking amendment to the plaint. In view of the proposed amendment, plaintiff wants to claim relief in respect of partition and separate possession of suit property and also intends to add members of the family as party defendants. Plaintiff also proposes to amend clause contained in the plaint in respect of valuation of suit property and court fee payable thereon by the plaintiff. 5 The application seeking amendment was opposed by Respondents - original defendants contending that relief claimed by the plaintiff by way of amendment cannot be permitted in view of bar contained in Order II Rule 2 of the Code of Civil Procedure. The relief prayed for by virtue of amendment could have been prayed at the time of presenting suit and as he failed to claim relief, by virtue of provisions of Code of Civil Procedure, he is precluded from seeking such amendment and claim relief. Another objection is raised on the basis of provisions of Order II Rule 2 of the Code of Civil Procedure. It is contended that the application for amendments presented after framing of issues has been rightly turned down by the trial Court. 6 I have perused the application and order passed by trial Court. The trial Court has misconceived the provisions of Order II Rule 2 of Civil Procedure Code. There is no earlier claim raised by plaintiff which has been decided by the Court of 4 competent civil jurisdiction. In the absence of there being any proceedings, provisions of Order II Rule 2 of the Code of Civil Procedure cannot be said to have been attracted. The reasoning adopted by the trial Court in that regard is erroneous. 7 So far as objection raised on the basis of provisions of Order 6 Rule 17 of the Code of Civil Procedure, it is pointed out that on the date of presentation of application seeking amendment, the trial Court has proceeded to frame issues. It is not that the application is presented belatedly after framing of issues. Evidence in the matter is yet to commence. It is permissible for the plaintiff to seek amendment and claim relief in respect of partition and separate possession in a suit earlier presented. It cannot be said that plaintiff is making out a new case or that by virtue of proposed amendment suit would undergo change. Defendant shall have liberty to file written statement controverting contentions raised in amended plaint. The order passed by trial Court is unsustainable and, therefore, liable to be quashed and set aside. 8 The petition, therefore, deserves to be allowed and same is accordingly allowed. The order passed by Joint Civil Judge, Senior Division, Aurangabad on 06.10.2009 below Exhibit-68 in Special Civil Suit No.280/2008 stands quashed and set aside. Application presented by plaintiff seeking amendment to the plaint is allowed. Defendants shall have liberty to present additional written 5 statement controverting contentions raised in the amended plaint. Considering nature of litigation and pendency of suit, it would be appropriate for the trial Court to decide the suit expeditiously. The trial Court is, therefore, directed to decide pending suit as expeditiously as possible preferably by the end of October 2010. 9 Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. ( R. M. BORDE) JUDGE adb/wp757409