1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1891 OF 2009 Lake-View Developers, Registered Partnership Firm, through its Partner Vinay Uttamchand Parakh, age 45 years, Occu. Business, R/o Ganesh Building, Navi Peth, Jalgaon, Tq. & Dist. Jalgaon. ....Petitioner. Versus 1] Devidas Sambhu Mali, Age 49 years, 2] Ganesh Sambhu Mali, Age 46 years, 3] Suresh Sambhu Mali, Age 45 years, 4] Ku. Archana d/o Sambhu Mali, Age 26 years, All Occu. Agri, R/o 311, Joshi Peth, Jalgaon. 5] Sau. Usha Dattatraya Pander, age 52 years, Occu. Household R/o Vellipura, at & Post Aurangabad. 6] Sau. Mangal Shankar Bajmurte Age 44 years, Occu. Household, R/o Gopalpura, At & Post Jalna. 7] Sau. Shoba Suresh Mukhtyal, Age 41 years, Occu. Household, R/o Alhati, Dist. Ahmednagar. 8] Sau. Bharti Ghanshyam Kachkal, Age 37 years, Occu. Household, R/o Subhedar Galli, At & Post Ahmednagar. 2 9] sau. Ranjana Ajay Balapure, Age 34 years, Occu. Household, R/o Subhedar galli, at & Post Ahmedngar. ....Respondents. Shri. A.G. Telhar, Advocate for the Petitioner Shri. Girish Rane, Advocate for the respondent No. 2 and 3. CORAM : R.K. DESHPANDE, J. DATE : 07th July, 2010. ORAL JUDGMENT : 1. This Writ Petition challenges order dated 13/0/2009, passed by the learned 3rd Joint Civil Judge Senior Division, Jalgaon order below Exh. 73 in Special Civil Suit No. 67 of 2002, By this order application Exh. 73 filed by the plaintiff for amendment of plaint has been rejected. By way of an amendment the plaintiff has sought to change the cause tile of the suit, the verification clause and to introduce the para No. 1-A in the plaint. 2. The Trial Court has rejected the application only on the ground that if amendment application is allowed it will cause great prejudice to the defendant, and it will amount to take away the admission given by the plaintiff. If partner Vinay Uttamchand Parakh is allowed to sign the plaint on the date of application, it will change the cause of action and it will cause injustice to the defendant. Hence, the application is rejected. 3 3. Notice in this matter was issued on 02/04/2009. Shri Rane, learned counsel appears for respondent Nos. 2 and 3. On 02/04/2009 this Court had made it clear that, if possible the petition will be considered for final disposal on the returnable date. The proceedings of the Lower Court were stayed. Subsequently on 09/06/2009, this Court again issued notices to the respondent Nos. 6 to 9. Pursuant to that the concerned respondents are served. None appears for them. In view of the fact that notices were already served, it is not now necessary to issue a fresh notices of the final disposal. Shri A.G. Telhar the learned counsel appearing for the petitioner and Shri Girish Rane, appearing for the respondent Nos. 2 and 3 agree that the matter can be finally disposed of at the admission stage. Hence, Rule mad returnable forthwith. The matter is heard by consent of learned counsels appearing for the parties, fresh notices to respondent Nos. 6 to 9 are dispensed with. 4. The application below Exh. 73 in Special C.S. No. 67 of 2002 has been rejected by the III Jt. Civil Judge Senior Division, Jalgaon on the ground that, if the amendment is allowed, great prejudice will be caused to the defendant and it will amount to taking away the admission given by the plaintiff. It is further held that if partner Vinay Uttamchand Parakh is allowed to sign the plaint on the date of application, it will change cause of action and shall cause injustice to the defendant. Such reasons are unsustainable in law. The counsel appearing for the parties are unable to tell what admission will be taken away if the 4 amendment is allowed. Similarly, any defect in the verification is curable. Hence, on that count, the amendment could not have been rejected. What prejudice is likely to cause the defendants, has also not been stated. The order therefore, cannot be sustained. 5. However, learned counsel appearing for respondent has invited my attention to the provisions of 22 Rule 10 of Civil Procedure Code, dealing with the procedure in case of assignment before final order in suit. According to him, if the rights accrue in favour of the present plaintiff by way of dissolution of partnership on 23/05/2007, then action ought to have been taken under Order 22 Rule 10 of Civil Procedure Code. He further submits that plaintiff was well aware of this fact, when the suit was decided on 19/07/2009, and also first appeal which was decided on 11/07/2008, by this Court. He further submits that, the provisions of order 6 Rule 17 does not apply to amendment in cause title of the plaint and to the verification clauses in the plaint. According to him, at the most action under Order 6 Rule 17 would be maintainable, only in respect of introduction of para No. 1-A in the plaint. 6. In view of the aforesaid points which are raised before this Court, the learned counsel appearing for the petitioner seeks leave to file application under Order 22 Rule 10 of Civil Procedure Code. He further seeks leave of this Court to withdraw application Exh. 73 with liberty to 5 file a fresh, as it is the point which can be said to be under Order 22 rule 10 of Civil Procedure Code. 7. In view of the submissions which are made before this Court, the petitioner is permitted to withdraw the application Exh. 73, with liberty to file separate application for amendment under Order 6 Rule 17 of Civil Procedure Code and also the separate application under Order 22 Rule 10 of Civil Procedure Code. So far as verification of to the pleadings is concerned , it is curable defect and separate application for the same can also be made by the petitioner / plaintiff. 8. In view of the above, Writ Petition succeeds. The order dated 13/02/2009 passed on an application below Exh. 73, in Regular civil suit No. 73 of 2002 is hereby quashed and set aside. The petitioner is granted liberty to file fresh application under Order 6 Rule 17 of Civil Procedure Code introducing the amendment including Para No. 1-A. Similarly the petitioner is also granted liberty to file application under Order 22 Rule 10 of Civil Procedure Code and also an application for removal defect in the verification. If such application are made, the same shall be considered in accordance with law, after hearing the parties. Rule is made absolute in these terms. No order as to costs. [ R.K. DESHPANDE, J. ] SDM*1891.09WP(J)