1 WP 3626.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3626 OF 2010 Balaji S/o Dnyanoba Kendre (Bhokre) .... PETITIONER V E R S U S Sau. Haribai Janardhan Karad & Others .... RESPONDENTS Mr. V.D.Salunke, Advocate for the petitioner. Mr. S.P.Urgunde, Advocate for Resp. Nos. 1 to 4. CORAM : S.V. GANGAPURWALA, J. DATE : 22/09/2011 ORAL ORDER : 1. The present petitioner is the original defendant no. 9. The present respondent nos. 1 to 4 filed Suit for declaration regarding the sale deeds, partition and separate possession in respect of various suit properties. The present petitioner appeared and resisted the suit by filing the Written Statement. After the Written Statement was filed, the plaintiffs moved an application for amendment, thereby seeking relief of declaration regarding the sale deed in respect of land G.No. 352 admeasuring 80 R. The said application is allowed. 2. The present petitioner has filed an application for taking action against the plaintiffs for manipulating the record in as much as correction was made in the amendment application without the 2 WP 3626.2010 permission of the Court. The trial Court has kept the said application in abeyance. Aggrieved by the order passed by the trial Court allowing the amendment application and keeping the application filed by the present petitioner in respect of taking action against the plaintiffs for making corrections in the amendment application without permission of the Court in abeyance, the present Writ Petition is filed. 3. Mr. V.D. Salunke, the learned counsel for the petitioner submits that the amendment allowed, changes the nature of the Suit. No relief was claimed in respect of the said sale deeds executed of 80 R. land out of G.No. 352. Only in para no. 1, the same was shown as the suit property, but no relief was claimed in prayer clause in respect of 80 R. land out of G.No. 352. Such an amendment could not have been allowed belatedly. 4. Mr. Salunke, the learned counsel further contends that the application was filed after one ( 1 ) year of the filing of the Written Statement. The same amounts to filling in the lacunae. The Court should have considered the application of the petitioner on its merits and taken action against the plaintiffs. Failure to do so, amounts to non exercise of the jurisdiction by the trial court. 5. Per contra, Mr. Urgunde, the learned counsel for the respondent nos. 1 to 4 submits that the order has been properly passed 3 WP 3626.2010 and it has been observed by the Court that the correction has been made after seeking permission. 6. The amendment which was made was before the stage of commencement of trial. The relief is claimed in respect of land G.No. 352 only. In the prayer clause, the said relief was not made. More over, it has been observed by the trial Court that the petitioner will have opportunity to cross examine the plaintiffs in that regard. As the amendment application would not change the nature of the Suit, only the sale deeds referred therein in the amendment application were not referred in the original plaint. That would not change the nature of the Suit. 7. As far as the order passed on an application filed by the petitioner is concerned, the Court has not decided it on merit and has said that the same is kept in abeyance for decision along with the main Suit after completion of evidence and arguments. The parties can lead evidence in respect of that aspect also. 8. In view of the above, the Writ Petition is dismissed. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 3626.2010 4 WP 3626.2010