1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1915 OF 2009 1. Ushabai Rajendra Bhandarkar, Age 51 yrs., Occu. Service, 2. Amit Rajendra Bhandarkar, Age 27 yrs., Occu. Service, 3. Dipti Rajendra Bhandarkar, Age 22 yrs., Occu. Household, 4. Namrata Rajendra Bhandarkar, Age 24 yrs., Occu. Household, (Petitioner No. 1 for herself and, Power of Attorney Holder for Petitioner Nos. 2 to 4 and all Petitioners R/o. Bhandarkar Galli, Amalner, District Jalgaon) ....Petitioners. Versus 1. Ramdas Vitthal Nikumbh, Age 56 yrs., Occu. Builder & Corporator, 2. Pratibha Ramdas Nikumbh, Age 50 yrs., Occu. Household, (1 & 2 R/o. Patwari Colony, Amalner, Dist. Jalgaon). 3. Dattatray Namdev Vispute, Age 53 yrs., Occu. Business, R/o. Bramhe Galli, Amalner, Dist. Jalgaon. 4. Ramesh Bhaskar Sonar, Age Major, Occu. Business, R/o. Balajipura, Amalner, Dist. Jalgaon. 2 5. Laxman Pandit Badgujar, Age Major, Occu. Business, 6. Rajaram Pandit Badgujar, Age Major, Occu. Business, (5 & 6, R/o. Balajipura, Amalner, Dist. Jalgaon). 7. Kishor Vitthal Nikumbh, Age 50 yrs., Occu. Dasi, R/o. Patwari Colony, C/o. Ramdas Vitthal Nikumbh, i.e. Respondent No. 1, R/o. Amalner, Dist. Jalgaon). ....Respondents. Shri. P.N. Kutti, Advocate for petitioners. Shri. Girish Rane, Advocate for respondent No. 1. CORAM : R.M. BORDE, J. DATE : 13th April, 2010 ORAL JUDGMENT : 1. Heard respective counsel appearing for the parties. 2. Rule. With the consent of parties, the petition is taken up for final disposal at admission stage. 3. An application, seeking the amendment to the plaint, presented by the petitioners/original plaintiffs on 21.1.2008 in pending Regular Civil Suit No. 36/2006 presented to the Court of Civil Judge, Junior Division, Amalner has been turned down by the Trial Court in view of the order passed on 1.1.2009. The plaintiffs/petitioners presented suit, 3 claiming declaration that the power of attorney in question allegedly executed by plaintiff No. 1 in favour of defendant Nos. 2 to 4 be declared as illegal and not binding on the plaintiffs. The plaintiffs also claim relief in the nature of an injunction restraining the defendants from creating third party interest during the pendency of the suit. 4. On presentation of the suit, the defendants have caused their appearance and controverted the contentions raised by the plaintiffs. The plaintiffs presented an application on 21.1.2008, requesting to permit him to amend the paint. By way of proposed amendment the plaintiffs/petitioners also seek to challenge the alienation effected on 14.12.2000 by defendant No. 1 on behalf of plaintiffs in pursuance to the document of power of attorney executed in his favour. The plaintiffs also proposed to change certain pleadings. The application was opposed by the defendants on the ground that apart from changing the nature of the suit, by virtue of proposed amendment, the plaintiff is substantially changing his stand which he had taken while he presented the suit. It is also contended that the defence of limitation available to the defendants would be defeated as a result of proposed amendment. The amendment application is also opposed on the ground that the exemption claimed by the plaintiff in respect of payment of Court Fees is not in accordance with the provisions of Bombay Court Fees Act. Considering the objections raised by the defendants, the application tendered by the petitioners/plaintiffs came to be rejected. 4 4. I have perused the application as well as the the impugned order passed by the Trial Court. The objections taken by the defendants can be taken care of by issuing suitable directions. 5. That so far as the defense of limitation available to the defendants is concerned, the Trial Court shall have to be directed to frame issue in that regard and consider the defence in respect of limitation for granting relief as claimed by the plaintiffs by virtue of proposed amendment. It is also necessary to direct that the amendment shall have an effect from the date of presentation of the application. So far as the objection raised in respect of payment of Court Fees is concerned, obviously from the pleadings itself the plaintiffs will not be entitled to claim exemption from the Court Fees and the Trial Court, after considering relevant notification issued by the Bombay Court Fees Act, shall direct the plaintiff to pay Court Fees. As a result of change in valuation of the suit, the forum of presentation of the suit is also likely to undergo change. The Trial Court shall pass an appropriate order in that regard. So far as the instant application tendered by the applicants/petitioners is concerned, the same can be granted and the defendants can be permitted to present amended written statement with a view to controvert the contentions raised by the plaintiffs in the amended plaint. It is pointed out that the issues in the matter are yet to be framed. In this view of the matter, there is no impediment for permitting the plaintiffs 5 to amend the pleadings. 6. The impugned order passed by the Trial Court on 1.1.2009 in Regular Civil Suit No. 36/2006 is quashed and set aside and the application tendered by the plaintiffs seeking amendment to the plaint shall be deemed to have been allowed. The Trial Court shall pass appropriate orders in accordance with the observations made in this order. Rule is made absolute in the above terms. In the facts and circumstances of the case, there shall be no order as to costs. [ R.M. BORDE, J. ] ssc/wp1915.09