wp3987.11 1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ WRIT PETITION NO.3987 OF 2011 RANI GOVIND HALKE U/G RUKMINIBAI GOVIND HALKE AND ORS VERSUS GOVIND BHARAT HALKE AND ORS ... Advocate for Petitioners: Mr.Deshpande C.R. Advocate for Respondents : Mr. Chawre Anand for R/1 to 3, Mr. Deshmukh Satish S Adv for R/4 & 5. ... CORAM : S.S. SHINDE, J. Dated: December 16, 2011 ... Heard learned Counsel for the parties. 2 This writ petition takes exception to the order dated 24th February, 2011 passed by the C.J.S.D., Latur. 3 The learned Counsel for the petitioners submits that at the time of filing the suit, the correct date of marriage of Sunita was not available with the plaintiffs and, therefore, they could not add her as party to wp3987.11 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ the suit. There was no clarity about the fact as to whether the marriage of Sunita had taken place prior to 1994 or thereafter. Therefore, according to the learned Counsel for the petitioner since respondents No.1 to 3 herein themselves have stated in written statement that Sunita is necessary party, the suit should not fail on technical ground, the application was filed for adding Sunita as party defendant to the suit. 4 On the other hand, the learned Counsel for respondents No.1 to 3 submits that no due diligence has been shown by the petitioners - plaintiffs to take steps to add Sunita as party, evidence of the plaintiffs is complete. The defendants have filed affidavit in lieu of examination-in-chief. Therefore, at this belated stage, the trial Court has rightly rejected the application for adding Sunita as party defendant to the suit. According to him, in view of proviso to Rule 17 of Order 6 of the Code of Civil Procedure, wp3987.11 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ unless due diligence is shown, the Court has no discretion to allow the application for amendment or addition of parties. Therefore, he submits that the petition may be dismissed. The same argument is adopted by the Counsel for respondents No.4 and 5. 5 I have given due consideration to the rival submissions of the parties. Though it is contented in the application that the plaintiffs were not aware about the exact date of marriage of Sunita, even then in a suit for partition, all the Legal Representatives are required to be added as party. Sunita is daughter of defendant No.2 and sister of defendant No.1. Therefore, she was necessary party to the suit and if she is not added as party defendant, there may be possibility that suit may fail on that ground. Therefore, the trial Court should have allowed the application for amendment, that wp3987.11 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ too, when the written statement was filed by respondents No.1 to 3, an objection was raised for not adding Sunita as party defendant in the suit. 6 In that view of the matter, the impugned order is set aside. The application at Exh.75 for adding Sunita as party defendant is allowed. The plaintiffs are directed to add Sunita as party defendant in the suit. After adding Sunita as party defendant, the concerned Court to issue notice to the added party. Writ petition stands allowed accordingly and disposed of. (S.S. SHINDE, J.) PLK/*