( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2938 OF 2010 1. Abhijit s/o Dilip Shah, R/o 18, Wamannagar, Near Water Tank, Jule-Solapur, Tq. and District Solapur. 2. Shobha w/o Dilip Shah, R/o 18, Wamannagar, Near Water Tank, Jule-Solapur, Tq. and Dist. Solapur. 3. Punam w/o Sunil Doshi, r/o Prathmesh Colony, Vidyanagar, Karad, Tq. Karad, District Satara. 4. Sarika w/o Bhushan Kothadia, R/o Near Pade Temple, Mahavirnagar, Pandharpur, Tq. Pandharpur, Dist. Solapur. 5. Sayali w/o Sachin Shah, R/o Near Vitthal Mandir, Kurduwadi, Tq. Madha, District Solapur. PETITIONERS VERSUS 1. Dilip s/o Manoranjan Shah, R/o Gunjoti, Tq. Omerga, District Osmanabad. 2. Savita w/o Subhash Shah, R/o Someshwarnagar, Baramati, Tq. Baramati, District Pune. 3. Ranjana w/o Dilip Shah, R/o Gunjoti, Tq. Omerga, District Osmanabad. 4. Suresh s/o Vishwambar Jadhav, R/o Gunjoti, Tq. Omerga, District Osmanabad. 5. Ramesh s/o Vishwambar Jadhav, R/o Gunjoti, Dist. Osmanabad. RESPONDENTS ( 2 ) [CORAM : V.R. KINGAONKAR, J.] [DATE : 5th July, 2010] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and by consent of learned counsel of the parties, heard finally. 2. By this petition, the petitioners seek to challenge order dated 26th November, 2009 rendered by learned Civil Judge (S.D.), Omerga on their application (Exh-58) for amendment of the plaint in Special Civil Suit No. 6/2007. 3. The petitioners have filed suit for partition and separate possession. The petitioners are claiming their shares in respect of properties which are in the hand of defendant No.1/respondent No. 1 – Dilip. According to them, the suit properties are the ancestral properties in which they are entitled to claim due shares. They filed an application for amendment seeking addition of two (2) property items which were excluded earlier. They further sought amendment to the effect that father of the respondent No. 1 – Dilip had effected partition somewhere in 1988 and allotted separate shares to mother of the respondent No.1 and his children by name Smt. Savita, Pavankumar and Pradeepkumar and, therefore, ( 3 ) the suit properties were exclusively left in the hand of the defendant No.1/respondent No.1 – Dilip. The learned Civil Judge rejected the application for the reason that such amendment was likely to change the nature of the suit. 4. Having heard learned counsel for the parties and on going through the impugned order, it is amply clear that the learned Civil Judge failed to appreciate the proper tenor of the proposed amendment. The learned Civil Judge held that if the application is allowed, then it would create complications, because the other persons like Pawankumar and Pradeepkumar are not parties to the suit. In fact, the petitioners did not ask for any relief against them. The learned Civil Judge observed : “When his father has partitioned the properties against his sons. What was the motive behind the same why he has relinquish the name of Dilip Shaha, all are material question that question did not solve in this matter. Present suit is filed for partition. There is no bar to file fresh suit. Moreover, how the said properties is in possession of them at this juncture are not brought on the face of record. A period of 28 years are passed therefore if it is allowed to carry out the amendment naturally it will create hurdle and ( 4 ) complications for the present litigation.” Perusal of the above observations would show that the purpose for which the amendment was sought by the petitioners is not properly capitulated and the application is erroneously rejected on assumption that it may cause complications in the progress of the suit. The impugned order is improper and perverse in as much as the very text and purpose of the amendment is misunderstood by the learned Civil Judge. In this view of the matter, the impugned order is unsustainable in the eye of law. 5. In the result, the petition is allowed. The impugned order is set aside. Petitioners be allowed to amend the plaint in accordance with the prayer clause shown in the application (Exh-58). The amendment to be carried out within three (3) weeks. Rule made absolute accordingly. 6. The parties may act on copy of this judgement and order, duly authenticated by the Court Shirestedar. [V.R. KINGAONKAR] JUDGE NPJ/wp2938-10