1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 4582/2008 (Mrs. Urmila Narayandas Rathi VERSUS Dhanraj Shankarlal Rathi) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri H.S. Gaikwad, counsel for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : NOVEMBER 10, 2008. Heard. By this petition, the petitioner impugns the order passed by the 7th Joint Civil Judge (Senior Division), Nagpur on 26.06.2008 rejecting the application filed by the petitioner for amendment of the written statement. The petitioner is the original defendant. A suit was filed by the plaintiff/respondent for a declaration that the petitioner had no right to sell her house, i.e. the suit property, to any third person other than the petitioner in view of a clause in the registered partition deed dated 27.02.1987. 2 The claim of the plaintiff was denied by the petitioner. It was pleaded by the defendant- petitioner that the plaintiff was not ready and willing to purchase the suit house. It was also pleaded by the petitioner in the written statement that the plaintiff had never expressed at any point of time that he had a right of preemption to purchase the suit property and had also not referred to the registered partition deed dated 27.02.1987 which provided that in case of sale of the property by one of the parties, the other party would have a first preference to purchase the same. The defendant sought for the dismissal of the suit. When the case was at the stage of evidence and the evidence of the witnesses was being recorded, the petitioner filed the amendment application. By the proposed amendment, the petitioner wanted to plead that the petitioner was not desirous of selling the property to anybody for 3 the reasons stated in the proposed amendment and also that the prices of the property had increased during the pendency of the suit. The prayer made in the amendment application was strongly opposed by the plaintiff. The trial Court rejected the application by the impugned order dated 26.06.2008. It is now submitted on behalf of the petitioner that the petitioner would not press the petition so far as the rejection of the proposed amendment pertaining to unwillingness of the petitioner to sell the property at this juncture is concerned. It is submitted on behalf of the petitioner that the petitioner does not want to press the part of the proposed amendment which states that the defendant/petitioner is not desirous of selling the suit property as she wishes to reside in the suit property along with her children. According to the counsel for the petitioner, the proposed amendment, 4 so far as it relates to the rise in prices of the property is concerned, ought to have been allowed by the Civil Judge (Senior Division), Nagpur. No fault can be found with the impugned order dated 26.06.2008 as the plaintiff had merely filed a suit for the declaration that the defendant had no right to sell her house, i.e. the suit property, to any third person other than the plaintiff in view of the clause in the registered partition deed dated 27.02.1987. The trial Court rightly held in paragraph 2 of the impugned order that by the proposed amendment, the petitioner wanted to overcome certain admissions made by the petitioner in the reply dated 28.01.2000 at Exh.13. The Court was further justified in observing that the question whether the defendant wanted to sell the property or not was not the relevant fact so far as the suit was concerned as the plaintiff had merely sought a declaration that the defendant had no right to sell 5 the suit house to any third person. This meant that if at all the defendant wanted to sell the suit house, the first right of purchasing the property would be of plaintiff. It is clear from a perusal of the plaint, the written statement and the impugned order that the proposed amendment was not necessary for effectively deciding the lis between the parties. There is no jurisdictional error in the impugned order dated 26.06.2008. The writ petition is, therefore, dismissed with no order as to costs. JUDGE APTE