1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5048 OF 2009 Madhukar Laxman Wakade ...Petitioner vs. 1 Bhaskar Laxman Wakade 2 Smt.Nirabai Dattaram Thale 3 Smt.Sushila Kashinath Mhatre ...Respondents Mr.M.B.Kale i/b Mr.K.S.Deval for the petitioner Mr.B.G.Tangsali for respondent no.1 CORAM :A.S.OKA,J. DATE : FEBRUARY 10, 2010 JUDGMENT : 1 On earlier date the parties were put to notice that the petition will be taken up for final hearing. 2 The Petitioner is the 1 st defendant and the 1 st respondent is the original plaintiff. The plaintiff filed a suit for partition and separate possession of lands bearing Gat No.338 as well as House No.115-B. A written statement was filed by the petitioner to the said suit contesting the claim. 3 An application for amendment was made by the petitioner which has been rejected by the impugned order. 4 I have heard the learned counsel for the parties. The first contention raised in the application for amendment of the plaint is that the land bearing Gat No. 337 ought to have been made subject matter of the suit as the petitioner and the 1 st respondent have one half share each in the said land. What is prayed for in the said application is for grant of permission to amend the plaint. The first prayer is for incorporating the 2 description of land bearing Gat No.337 in the paragraph 11 of the plaint. The second prayer is for incorporating prayer clause (b) in the written statement for partition and separate possession of the land bearing Gat no.337. Though the application purports to be an application for amendment of the written statement, a xerox copy of the said application annexed on pages 24 to 26 contains prayer for amendment of the plaint. In the prayer clause on page 25, it is clearly prayed that permission be granted to amend paragraph 11 of the “ द।व। (plaint). As far as the second prayer is concerned, it appears to be a prayer for incorporating the prayer for partition in the written statement. However, the written statement is silent about any right of the petitioner as regards the land bearing Gat no.337. There is no foundation in the written statement for the said prayer. 5 As far as first part of the amendment is concerned, the prayer is for amendment of the plaint. At the instance of a defendant, such a prayer cannot be entertained. No purpose will be served by allowing the amendment of paragraph 12 of the written statement by adding a prayer for partitions in as much as there is no foundation in the written statement for claiming relief as regards the land bearing Gat no.337. There are no averments made in the written statement as regards the land bearing Gat no.337. 6 In the circumstances though the reasons recorded by the trial Court may not be proper, no fault can be found with the final order passed by the trial Court. However, it will be open for the petitioner to make a fresh application for amendment of the written statement for raising appropriate contentions as regards the land bearing Gat no.337. 3 7 Subject to what is observed above, no case for interference is made out. Writ Petition is rejected. JUDGE