1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 441 OF 2010 Shaikh Younus Shaikh Farid, Age 29 yrs., Occu. Agril., R/o. Pokhari, Tq. Ambejogai, Dist. Beed. ....Petitioner. Versus Shaikh Afsar s/o. Shaikh Tamiz, Age 64 yrs., Occu. Agril., R/o. Pokhari, Tq. Ambejogai, Dist. Beed. ....Respondent. Shri. M.D. Narwadkar, Advocate for the petitioner. Shri. Vivek Bhavthankar, Advocate for the respondent. CORAM : R.M. BORDE, J. DATE : 8th April, 2010 ORAL JUDGMENT : 1. Heard respective counsel appearing for the parties. 2. Rule. With the consent of parties, the matter is taken up for final disposal at the stage of admission. 3. An application tendered by the petitioner/original plaintiff for 2 permitting him to carry out the amendment by extending the time has been turned down by the 3rd Joint Civil Judge, Junior Division, Ambejogai in view of the order passed on 8.12.2009. 4. The plaintiff contends that suit was presented by him initially, claiming a decree of declaration of ownership and perpetual injunction against the defendant. During the continuation and operation of injunction order, the property is stated to have been alienated by the defendant in favour of third person. It was, therefore, felt necessary by the plaintiff to implead him as a party to the litigation and application seeking amendment was tendered in the year 2008. The Trial Court, after considering the contentions raised by the parties, allowed the application by order dated 24.7.2008. The plaintiff, however, failed to carry out the amendment within stipulated time and he was required to tender an application, seeking permission to carry out the amendment which was also considered favourably and time of 5 days was also granted in view of the order passed on 30.9.2009. The plaintiff did not carry out the amendment within the permissible period. He again tendered an application on 8.12.2009, requesting the Court to permit him to carry out the amendment by extending time. The application presented by the plaintiff on second occasion has been turned down by the Trial Court. 5. It is the contention of the petitioner/original plaintiff that 3 daughter of his counsel, representing him in the Trial Court, was indisposed and was admitted in hospital. The counsel, therefore, could not take steps and carry out the amendment. The petitioner has also annexed the copies of the relevant medical papers pertaining to the treatment extended to the daughter of the counsel appearing in the Trial Court. The reason stated by the petitioner appears tobe genuine. In my opinion, therefore, one more opportunity needs to be extended to carry out the amendment and time is required to be extended for the said purpose. 6. However, at the same time, it is to be noted that the application tendered by the plaintiff was initially granted by the Trial Court permitting him to amend the plaint in the month of July 2008. The petitioner did not prosecute the matter deligently and as such, the suit remained pending. Every time applications were tendered under one pretext or another and the Trial Court has shown indulgence in favour of plaintiff. The defendant/respondent herein is put to inconvenience because of the approach of the plaintiff/petitioner. Considering this aspect, the respondent/original defendant needs to be compensated on account of inconvenience caused to him because of laxity of the plaintiff /petitioner. While allowing the petition, I propose to direct the plaintiff/petitioner to pay cost of Rs. 3,000/- to the respondent/defendant. 4 7. In this view of the matter, the order passed by the 3rd Joint Civil Judge, Ambajogai on 8.12.2009 below Exh. 44 in Regular Civil Appeal No. No. 44/05 is quashed and set aside and the application tendered by the plaintiff at Exh. 44 shall be deemed to have been allowed, however, subject to payment of cost of Rs. 3,000/- (Rs. three thousand) within four weeks from today. In the event of failure to pay cost to the defendant or to deposit the same in the Court within stipulated period, the order passed by this Court in this writ petition shall stands recalled. Rule is accordingly made absolute. [ R.M. BORDE, J. ] ssc/wp441.10