1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.9411 OF 2009 Vasant Govind Zagade & Anr. ...Petitioners vs. Govind Ganpat Zagade (since deceased through L.Rs) 1A Parubai Parshuram Baravkar & Ors. ...Respondents Mr.Rahul Kate for the petitioners Mr.Rupesh Zade for respondent Nos.1A and 1B. CORAM :A.S.OKA,J. DATE : APRIL 13, 2010 P.C.: 1 On 22nd January 2010, a notice was issued for final disposal of the writ petition at admission stage. Office noting shows that the notice issued through Court to 2nd and 3rd respondents has been duly served. Respondent Nos. 1-a and 1-B are represented by an Advocate and the said respondents are supporting the petitioners. 2 The petitioners are the original plaintiffs. The petitioners filed a suit for declaration that sale deed executed by the first defendant in favour of the third defendant was illegal and not binding on the share of the petitioners. A prayer is also made for partition and separate possession of the ½ share of the petitioners. The suit properties are lands bearing Gat nos.778, 872 Part and 668 situated at Jejuri, Taluka Purandar, District Pune. The sale deed dated 20th March 2001 in respect of which declaration has been claimed relates to a part of the suit property. After commencement of the trial, an application was made by the petitioners for 2 amendment of the plaint. The first amendment was for incorporating correct boundaries of the suit lands. The second prayer was for incorporating an averment that area of Gat No.872 Part is 1 hectare and 20 ares. The later part of the amendment was for correcting valuation clause of the plaint. In the original plaint, valuation has been made at an amount which is equivalent to 200 times revenue assessment of the ½ share of the petitioners in the suit lands. The said valuation is sought to be corrected by the amendment. Moreover, the additional court fee is sought to be paid on the market value of the four constructed galas on the land bearing Gat no.668. The said amendment has been rejected relying upon the proviso to Rule 17 Order VI of the Code of Civil Procedure,1908. 3 After having heard the learned counsel for the petitioners, I find that the amendment ought to have been permitted by the learned trial Judge. As far as correction to area of Gat no.872 is concerned, during the cross examination of the first petitioner, a suggestion was given by the contesting defendants to him that area of Gat no.872 which was purchased by the parties was 1 hectare and 20 Ares. Therefore, the said amendment ought to have been permitted as the same is of formal nature. As far as amendment to the valuation clause is concerned, whether amendment is permitted or not, the plaintiff has to pay court fee lawfully payable on the suit claim. In the present case, the case of the petitioners is that they have paid lesser court fee at the time of filing the suit and therefore, they want to correct the valuation clause and pay deficit court fee. Therefore, amendment to that effect was required to be permitted. The question whether the valuation sought to be made by amendment is lawful or not, can be decided later.The third part of the 3 amendment is for describing the boundaries of the suit land. The amendments are of such nature which could have been permitted even under section 153 of the said Code. Essentially, the amendments are of formal nature causing no prejudice to the respondents. 4 Hence, I pass the following order : i) Impugned order dated 9th September 2009 is quashed and set aside. ii)The application at Exhibit-66 is allowed. iii)Amendment to be carried out within a period of two weeks from the date on which writ of this order is received by the trial Court. iv)After amendment is carried out, it will be open for the defendant to file additional written statement dealing with the amended plaint. v) All contentions of the parties on merits are kept open. JUDGE