1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 890/2009 (Vatchhalabai wd/o Sadashivrao Ghodshelwar VERSUS Shankarrao Abaji Potwar) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.P. Sadavarte, counsel for the petitioner. Ms. Pragati Yerlekar h/f Shri V.M. Deshpande, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 21, 2009. By this petition, the petitioner impugns the order passed by the District Judge-I, Bhandara on 16.01.2009 allowing an application filed by the respondent under Order XLI Rule 2 read with Order VI Rule 17 of the Code of Civil Procedure for permission to amend the appeal memo. It is submitted on behalf of the petitioner that the appellate Court was not justified in allowing the application filed by the respondent for permission to amend the appeal memo so as to raise certain grounds, as in a second appeal filed by the petitioner against the order passed by the District 2 Judge, Bhandara in the earlier round of litigation, the High Court had, by the judgment dated 28.08.2008, remanded the matter to the first appellate Court to decide the same afresh on merits. According to the learned counsel for the petitioner, in such circumstances, when the remand of the matter was made by the High Court for a limited purpose, the District Judge-I, Bhandara was not justified in allowing the application for amendment of the appeal memo filed by the respondent. The learned counsel for the petitioner then submitted that the District Judge, Bhandara had no jurisdiction to pass the impugned order dated 16.01.2009 as the said matter was liable to be transferred to the District Court at Gondia after the establishment of the District Court at that place and later on, the matter was rightly transferred to the Court of District Judge, Gondia. According to the learned counsel for the petitioner, no case had been 3 made out by the respondent for granting the prayer made in the application filed under Order XLI Rule 2 read with Order VI Rule 17 of the Code of Civil Procedure. Learned counsel Ms. Pragati Yerlekar holding for Shri V.M. Deshpande, the learned counsel for the respondent, supported the order passed by the District Judge-I, Bhandara and submitted that the respondent was merely intending to raise some additional factual grounds in the appeal memo, which was filed by the respondent. The grant of the prayer made in the amendment application could not have caused any prejudice to the petitioner as according to the learned counsel for the respondent, the High Court had, by the judgment dated 28.08.2008, remanded the matter to the first appellate Court to decide the appeal afresh on merits, as the appellate Court had not considered number of documents, which were tendered by the 4 parties on record. In such circumstances, according to the learned counsel for the respondent, the order passed by the District Judge-I, Bhandara on 16.01.2009 is just and proper and calls for no interference. I have considered the submissions made on behalf of the parties and have also perused the application filed by the respondent under Order XLI Rule 2 read with Order VI Rule 17 of the Code of Civil Procedure. On a perusal of the application, it is clear that the respondent merely wanted to raise certain factual grounds in the appeal memo filed by the respondent before the District Judge-I, Bhandara. None of the grounds, which are sought to be raised by the respondent by the application under Order XLI Rule 2 read with Order VI Rule 17 of the Code of Civil Procedure could have taken the petitioner by surprise as they pertain to the facts of the case and the evidence tendered by the parties on record. The 5 District Judge-I, Bhandara was, therefore, justified in allowing the application filed by the respondent and permitting the respondent to amend the appeal memo by inserting the additional grounds in the same. The respondent was permitted to carry out the amendment forthwith and it appears that the respondent has also carried out the amendment in the appeal memo. In such circumstances, specially when the order passed by the first appellate Court is extremely just and proper, the same cannot be interfered with, in exercise of the extra ordinary writ jurisdiction. The submission made on behalf of the petitioner that the High Court had remanded the matter to the first appellate Court only on a limited issue is liable to be rejected, as by the judgment dated 28.08.2008, the High Court had remanded the matter to the first appellate Court to consider the entire evidence, which was tendered by the parties on record and decide the matter afresh on merits. 6 The other submission made on behalf of the petitioner that the District Judge-I, Bhandara did not have jurisdiction to pass the impugned order dated 16.01.2009 as the matter ought to have been transferred by him to the District Judge, Gondia is also liable to be rejected. In the result, for the reasons aforesaid, the writ petition fails and is dismissed with no order as to costs. JUDGE APTE