1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7339 OF 2008 Rukhminibai W/o Shankar Katke } Age : 45 Years, Occ. : Household, } R/o : Gautam Nagar, Tq. Omerga, } Dist.: Osmananad. } .... PETITIONER V E R S U S 1. Indubai W/o Vitthal Vatkar } Age : 40 Yrs., Occ. : Household } R/o : Near Kuchan High School, } Ravivar Peth, Solapur, Tq. & } Dist. Solapur. } 2. Kavirabai W/o Nagnath Sherkhane } Age : 42 Years, Occ. : Household, } R/o : Pangaon, Tq. Renapur, } Dist. Latur. } 3. Baliram S/o Sugreev Survase } Age : 35 Yrs., Occ. : Agriculture, } R/o : Omerga, Tq. Omerga, } Dist. Osmanabad. } .... RESPONDENTS Mr. S.B.Ghute, Advocate for Petitioner. Mr. S.N.Boiwar, Advocate holding for Mr. M.A.Kandharkar, Advocate for Respondent No. 4 . 2 CORAM : V.R.KINGAONKAR, J. DATE OF JUDGMENT : 03/02/2010 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally . 2. The petitioner filed Suit for partition and separate possession alleging that she was entitled to get share in agricultural land bearing S.No. 421 situated at Umerga. In her Suit (R.C.S. No. 393 of 1999), she moved an application (Exh. 67) for amendment of the plaint. She alleged that subsequently she learnt about fact that one house property was left by her father, which was in possession of third party, by name, Shankar Mahadu Katke. She sought leave to amend the plaint and include the house property in the claim clause as well to add the third party as defendant no. 5. By the impugned Order dated 2/8/2008, the learned 2nd Jt. Civil Judge (Jr.Division), Umerga rejected her application. 3. Heard learned counsel for the parties. 4. The impugned Order shows that the proposed third party, by name Shankar Mahadu Katke was not served with any notice of the application. The question pertaining to addition of such third party could not be decided without hearing said Shankar Mahadu Katke. The 3 application was straight-way dismissed on the ground that it causes change in the nature of the suit because the petitioner was asking for partition in respect of the land, which was the property of her mother, whereas now she wanted to add another property which was allegedly of her father. It prima facie appears that the basic nature of the suit does not change because it remains suit for partition inspite of the amendment. Nor there is any prejudice shown to the present respondents. If at all any prejudice would have been caused, then it could be only in relation to the rights of the third party i.e. said Shankar Mahadu Katke. Obviously, the trial court should have first issued notice to the third party and thereafter should have decided the application on merits. 5. Considering the inherent defect in the impugned order, the petition is allowed and the impugned order is set aside. Rule made absolute accordingly. The trial court shall issue notice to the proposed third party and thereafter decide the application on merits, afresh, after giving due opportunity to the concerned parties to put-forth their submissions. No costs. [ V.R.KINGAONKAR ] JUDGE knp/WP7339.08