1 wp-9720-11.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9720 OF 2011 Dilip Shankar Mulay ..Petitioner Vs. Pradip Shankar Mulay & Ors. ..Respondents Mr. Dilip Mulay petitioner in person present Ms Leena Patil for the Respondent No.1 CORAM : R M SAVANT, J. DATE : 12th December 2011 P.C. 1 The above Petition takes exception to the Order dated 4-10-2011 passed by the Learned 8th Joint Civil Judge (S.D.), Thane, by which Order the Application Exhibit 267 filed by the Petitioner who is the original Plaintiff for amendment of the plaint came to be rejected. 2 The suit filed by the Petitioner is one for partition and separate possession of his share in the suit property. However, the Defendant No.1 who is his brother claims that the said properties in question have been bequeathed to him by his mother by Will dated 3-9-1996. The Petitioner has questioned the genuineness of the Will and has averred in the plaint that the said Will has been actuated by fraud and forgery by the Defendant No.1. That is how the pleadings stood at the time when the amendment application Exhibit-267 came to be filed by the Petitioner/Plaintiff. 3 The amendment application was considered by the Trial Court and by the impugned Order dated 4-10-2011 came to be rejected. The Trial Court was of the view that the allegations of fraud, misrepresentation and undue influence relates to the execution of the Will by the deceased and, therefore, it 2 wp-9720-11.sxw would be for the Defendant No.1 to prove that the Will is genuine and he shall remove all suspicious circumstances as per Section 101 of the Indian Evidence Act. The Trial Court was of the view that considering the amendment application and the facts mentioned in the proposed amendment the same would be part of evidence and on the ground that only the material facts have to be pleaded and not evidence, the Trial Court reached to the conclusion that the said amendment application was beyond the scope of Order 6 Rule 17 of the Civil Procedure Code. 4 I have perused the proposed amendment as contained in Exhibit 267. A cursory glance of the amendment application indicates that the Plaintiff was proposing to incorporate stages of fraud what he has mentioned in paragraph 49(a) which refer to the first stage of fraud and the second stage of fraud. The amendment application also consists of averments relating to the manner in which Advocate Mr. V.N.Agashe and the Defendant No.1 have conducted themselves. In the context of the said averments as contained in the amendment application, the observations of the Trial Court that what is sought to be pleaded is evidence and not material facts, cannot be taken exception to, as the amendment application unmistakably points out that what is sought to be incorporated is the evidence in support of the case of the plaintiff as originally contained in the plaint. 5 In that view of the matter, no case for interference with the impugned Order is made out. The Writ Petition is accordingly dismissed. [R.M.SAVANT, J]