1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.2255 OF 2010 Pandhari Hanmantrao Tobre Age : 50 years, Occ : Agril., R/o Bhakaskheda (West), Tq.Udgir, Dist.Latur. ..Petitioner V/s 1. The State of Maharashtra Through Collector, Latur, Tq. & Dist. Latur. 2. The Deputy Engineer, Irrigation Project Strengthening Sub-Division No.4, Kava Raod, Latur, Tq. & Dist.Latur. 3. The Executive Engineer, Latur Medium Project Division, (L.M.P.) Latur, Behind Govt. Rest House at Ausa Road, Latur, Tq. & Dist.Latur. ..Respondents ......... Mr.S.S. Deshmukh holding for Mr.P.G. Rodge, Advocate for petitioner. Mr. N.H. Borade, AGP for respondent no.1. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 9th June, 2010. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and by consent of learned counsel for the parties, the petition is heard finally and disposed of at the stage of admission. 2 2. By this petition, the petitioner challenges order dated 20th November, 2009 rendered by the learned Civil Judge (S.D.), Ahmedpur, Camp at Udgir, on petitioner's application (Exhibit-39) filed in suit (R.C.S. No.175/2001). By that order, the application for amendment of the plaint came to be rejected. 3. The petitioner filed the suit for perpetual injunction alleging that he is in lawful possession of the land bearing gut no. 88 admeasuring 00 Hectors 99 Ares situated at village Bhakaskheda under Udgir Tahsil. He sought appointment of Court Commissioner in order to locate the area of construction. It appears that the T.I.L.R., Udgir carried out the measurement and submitted a report along with measurement map. The petitioner thereafter filed amendment application. By way of amendment, he wanted to introduce the plea regarding unlawful encroachment caused by the defendants and also is claiming for damages of Rs. 20,000/- per year, from the year 2001 onwards. The petitioner's Advocate was absent at the time of hearing of the amendment application. The learned Judge of the Trial Court rejected the application on the ground that it was likely to change the nature of suit. 4. Having heard the learned counsel and on going 3 through the impugned order, it is amply clear that the learned Civil Judge did not properly consider the reasons ascribed by the petitioner in support of amendment application. It appears that the amendment application could not have been moved prior to report of the Court Commissioner. The learned Civil Judge should have examined as to why the amendment was sought. Moreover, in absence of the Advocate of the petitioner, the impugned order should not have been rendered unless it was found that the Advocate was in habit of remaining absent or purposefully avoided the hearing. Needless to say, the petitioner was denied due opportunity to explain his stance in support of the application for amendment. The learned Civil Judge observed that the application was moved after a report of the Court Commissioner, and therefore, it was likely to affect the plaintiff's case. The relevant observations are thus : "During the pendency of the suit Court Commissioner was appointed to find out true facts on record. But on the basis of that point amendment application is allowed, it will affect plaintiff's case, as it changes nature of suit, which is not allowed as per the provisions of law. Hence application filed by the plaintiff for amendment is not considerable, hence it is rejected." 4 5. Needless to say that, the summary treatment was given to the application of the petitioner and without examining as to whether, the amendment was really necessary in order to adjudicate the suit properly, application was dismissed. As stated earlier, the application was dismissed without hearing the Advocate of the petitioner. Therefore, it is necessary to give opportunity to the petitioner to explain the reasons for the amendment of the pleadings. 6. In view of the aforegoing reasons, the Petition is allowed. The impugned order is set aside. The learned Civil Judge shall re-hear the parties on the application for amendment (Exhibit-39) and shall render afresh decision on merits by recording appropriate reasons. The Petition is accordingly disposed of. Rule made absolute. No costs. (V.R.KINGAONKAR) JUDGE gas/wp2255.10