1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.16 OF 2010 Ramesh s/o Nagorao Kalyan, aged: 46 years, Occ: Agriculture, R/o Naigaon (Bz), Tq. Naigaon, District Nanded. Petitioner Versus 1 Nagorao s/o Manikrao Kalyan, aged: 75 years, Occ: Agriculture, R/o Naigaon (Bz), Tq. Naigaon, District Nanded. 2 Harnabai w/o Nagorao Kalyan, aged: 70 years, Occ: Household, R/o Naigaon (Bz), Tq. Naigaon, District Nanded. 3 Subhash s/o Nagorao Kalyan, adult, Occ: Agriculture, R/o Naigaon (Bz), Tq: Naigaon, District Nanded. 4 Suresh s/o Nagorao Kalyan, aged: 43 years, Occ: Agriculture, R/o Naigaon (Bz), Tq.Naigaon, District Nanded. 5 Sow.Kantabai w/o Sadashivrao Shinde, age: 50 years, Occ: Household, R/o Naigaon (Bz), Tq.Naigaon, District Nanded. 6 Smt.Lata w/o Gajendra Chitale, age: 38 years, Occ: Household, R/o Naigaon (Bz), Tq. Naigaon, District Nanded. 2 7 Venkatrao Patil, adult, Occ: Business, agent, Anil Dhirubhai Ambanii Reliance Communication, Ambedkar Chowk, Anand Nagar, Shivaji Complex, Above Puja Hardware, Latur Road, Nanded. Respondents Mr.A.G.Godhamgaonkar, advocate for the petitioner. Mr.M.V.Deshpande, advocate for Respondent No.3. Respondents No.1, 2, 4 to 7 served. CORAM: R.M.BORDE, J. DATE : 21st April, 2010. ORAL JUDGMENT: 1 Heard Shri A.G.Godhamgaonkar, learned Counsel for petitioner and Shri M.V.Deshpande, learned Counsel for Respondent No.3. Respondents No.1, 2 and 4 to 7 served. Rule, made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 The order dated 05.09.2009, passed by trial Court below Exhibit-88 in Special Civil Suit No.1 of 2004, is subjected to challenge in this petition. 3 In the suit presented by plaintiff, an application was tendered seeking leave to amend the plaint. The trial Court, after considering rival contentions, allowed the application partly and refused permission to incorporate amendment to paragraph 13A of the plaint. However, trial Court permitted the plaintiff to incorporate rest of the contentions contained in the 3 application at Exhibit-88. The part of the order refusing permission in favour of the plaintiff to incorporate amendment to paragraph 13A of the plaint is subjected to challenge in this petition. 4 It is not necessary to go into factual aspects of the matter. By virtue of proposed amendment, plaintiff wants to incorporate amendment in respect of fraud committed by defendants. It is contended that there are contentions raised in the plaint in respect of fraud practiced by defendants, but those are quite scanty and as such detailed particulars are required to be stated. Defendants have presented say and opposed amendment. It is the contention of defendants that challenge raised to the earlier decree based on compromise, would be hit by provisions of Order XXIII Rule 3A of the Code of Civil Procedure and considering relevant provisions, proposed amendment will not be allowed. The trial Court found favour with the contentions raised by defendants and refused permission to the plaintiff to incorporate amendment to paragraph 13A of the plaint. 5 I have perused impugned order passed by the trial Court. Most of the contentions raised in the application seeking amendment to the plaint are permitted to be incorporated in the plaint. However, trial Court has refused permission to incorporate amendment to paragraph 13A of the plaint. As stated earlier, parties contended that there is already pleading in respect of fraud and not only that the trial Court has also framed issue in that regard. In these circumstances, there was no impediment for permitting plaintiff to incorporate amendment in paragraph 13A of the plaint. The bar as contended by defendants for entertaining challenge to earlier decree based on compromise can be considered by the trial Court at the time of rendering decision in the suit and that ground, in itself, will not be sufficient to 4 refuse permission in favour of the plaintiff to seek amendment to the plaint. 6 In this view of the matter, petition deserves to be allowed and same is accordingly allowed. The order dated 05.09.2009, passed by Civil Judge, Junior Division, Biloli, below Exhibit-88 in Special Civil Suit No.1 of 2004, to the extent of refusing permission in favour of plaintiff to incorporate amendment to paragraph 13A of the plaint stands quashed and set aside. The application tendered by plaintiff seeking amendment to the plaint shall be deemed to have been allowed in its entirety. It is pointed out that suit is presented in the year 2004 and is at the stage of recording of evidence. Issues in the matter are already framed and if found necessary, the trial Court may frame additional issue in that regard. Considering the controversy involved in the matter, trial Court is directed to dispose of pending suit as expeditiously as possible, preferably by the end of December 2010. Parties undertake to cooperate for early disposal of suit by trial Court. 7 Rule is accordingly made absolute. However, in the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/wp1610