1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.1596/2010 ( Kawarilal M. Sarma -: VERSUS :- Kishore M. Zamwar and others ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JULY 22, 2010. Heard Adv. Shri Khajanchi for petitioner/original defendant no.3 and Adv. Shri Adkar for respondent nos.3 (b) to 3 (f). Nobody appears for respondent nos.1 to 2 (d) though they were served with notice for final disposal. Adv. Shri Khanjanchi points out that suit as filed in 1988 was for permanent injunction only. In 2007, it was converted into a suit for partition and separate possession. In 2009 one of the defendants has been transposed as plaintiff and his share has also been sought to be separated. In these circumstances, because of the subsequent transposition, the defendant no.3 moved an application seeking leave to amend his written statement and to incorporate a challenge to the title of plaintiff. Adv. Shri Khanjanchi points out that sale deed dated 20/11/1970 was pressed into service by plaintiffs for the first time while seeking amendment in 2009 and because of that sale deed plaintiff no.2 (through legal heirs) sought 1/6th share and plaintiff no.1 also claimed 1/6th share. 2 Adv. Shri Adkar states that he is appearing for other defendants and has no objection if the amendment is allowed. With the assistance of Adv. Shri Khajanchi I have perused the impugned order. The Trial Court has found that the affidavit of examination-in-chief of plaintiff is already filed on record, the trial has commenced and hence refused to grant amendment. The suit as filed is of year 1988 and it has been later on re-registered as R.C.S. No.27/1992. Thus the mandatory provisions of Order VI Rule 17 are not automatically applicable in the present case. The facts above also show that in 2009 a sale deed of 1970 was pressed into service by plaintiff nos.1 and 2 and because of that sale deed they claimed together 1/3rd share in the suit property. In this circumstances, application for amendment is moved by present petitioner is consequential and it is moved on 9/11/2009 while the amendment of plaintiff filed on 5/10/2009 was allowed on 5/10/2009 itself. Thus, amendment which is consequential in nature has been filed immediately. The impugned order dated 30/12/2009 passed below Exh.128 is therefore, quashed and set aside. The petitioner – defendant no.3 is permitted to carry out the amendment as sought for in the written statement vide application at Exh.128. Necessary amendment be carried out by 10th of August 2010. Writ petition is thus allowed. No order as to costs. JUDGE Tambaskar.