(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 8108 OF 2010 1. Prasad s/o. Bhanudas Kokate, Age : 17 years, Occupation : Education. 2. Bhaskar s/o. Bhanudas Kokate, Age : 14 years, Occupation : Education. 3. Anjali d/o. Bhanudas Kokate, Age : 11 years, Occupation : Education. 4. Mangal w/o. Bhanudas Kokate, Age : 35 years, Occupation : Agriculture and Household, All R/o. Kangoni, Taluka : Newasa, District : Ahmednagar. Petitioner Nos.1 to 3 under guardianship of petitioner no.4 being mother. .. Petitioners. versus 1. Bhanudas s/o. Rambhau Kokate, Age : 55 years, Occupation : Agriculture. (2) 2. Gangubai w/o. Bhanudas Kokate, Age : 50 years, Occupation : Household. 3. Gorakh s/o. Asaram Bhandari, Age : 48 years, Occupation : Business. All R/o. Kangoni, Taluka : Newasa, District : Ahmednagar. .. Respondents. ....................... Mr. P.S. Pawar, Advocate, for the petitioners. Respondent nos.1 and 2 served (Absent). Mr. Z.M. Pathan, Advocate, holding for Mr. S.S. Kazi, Advocate, for respondent no.3. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 23RD MARCH 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. P.S. Pawar, for the petitioners / plaintiffs, and Adv. Mr. Z.M. Pathan, holding for Adv. Mr. S.S. Kazi, for respondent no.3. (3) 2. None for respondent nos.1 and 2 though duly served. Adv. Mr. Z.M. Pathan states that the said respondents are colluding with the petitioners / plaintiffs. 3. Rule. Rule made returnable forthwith. Heard finally by consent. 4. Looking to the nature of order that I propose to pass, service of notice upon Rule, upon respondent nos.1 and 2 is dispensed with. 5. The trial court has rejected the application for amendment moved by the petitioner / plaintiff after holding that the trial has already commenced. According to Adv. Mr. P.S. Pawar, amendment sought is of formal nature and it does not result in prejudice to the respondents. 6. Adv. Mr. Z.M. Pathan points out that the trial court has given valid reasons and there is no jurisdictional error or perversity. He contends that the alleged error in description of suit property is unauthorizedly corrected in affidavit of examination in chief by the petitioner / plaintiff. 7. The petitioner / plaintiff corrected the description of (4) suit property in his affidavit of examination in chief and thereafter he has also been subjected to cross examination. Apparently, there is inconsistency in the description of suit property shown in the plaint and description of suit property shown in the affidavit of examination in chief. How this inconsistency has been utilized by the respondents / defendants is cardinal question which ought to have been looked into by the trial court. If error is found to be inadvertent and technical, and respondents have not taken it seriously, it is apparent that no prejudice is caused to the parties and trial court could have allowed the plaint to be amended to bring it in conformity with the affidavit. 8. However, as respective Counsel are not in a position to render required assistance to this Court and trial court has also not looked into it, I am not recording any finding in relation to controversy involved in the matter. 9. In the result, the petition is partly allowed. (i) The impugned order dated 23-6-2010, passed by the learned Civil Judge (Junior Division), Newasa, below Exhibit 50 in Regular Civil Suit No. 289/2007, is quashed and set aside. Matter is remanded to the trial court for fresh decision. The trial (5) court shall hear the parties afresh, on Exhibit 50, apply its mind properly and then pass fresh orders. (ii) The observations made by this court are only for the purpose of indicating necessity of remand and shall not influence the trial court while deciding the controversy on merit. 10. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp8108