: 1 : 5605-10-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5605 OF 2010 Shirish Genbhau Kalate & Ors. .. Petitioners v/s. M/s. Serene Shelters (Pune) Pvt. Ltd. & Ors. .. Respondents ......... Mr. A.V. Anturkar i/b S.S. Salunkhe for the petitioners Mr. Dilip Bodke and Kiran Dhawade for respondent no.1 Mr. P.S. Dani with Hitesh Vyas for respondent no.4 ......... CORAM : R.Y.GANOO, J DATE : 28th SEPTEMBER,2011. P.C. : 1. Rule. 2. Rule is made returnable forthwith. Learned advocate appearing on behalf of respondent no.1 original plaintiff waives service. By consent, petition is taken up for hearing. 3. Respondent no.1 had filed S.C. Suit No.657 of 2005 in the Court of learned Civil Judge, Senior Division, Pune for diverse reliefs. During the : 2 : 5605-10-wp=.sxw pendency of the suit, application for amendment of the plaint was made by Exh.46. To that application, say was filed by all the petitioners who were defendant nos.1 to 6 in the trial Court. The said reply dated 16th February, 2008 is on record and is marked as Exh.50. Despite this reply on record, learned Civil Judge, Senior Division, Pune before whom this application for amendment of the plaint came up for hearing, observed in his order that no say is filed by the other side. Thereafter, he has proceeded to observe as to why the order should be granted. 4. My attention was drawn by learned advocate Mr. Anturkar to the relevant Roznama, where it is noticed that say is filed by the defendants at Exh.50. Thereafter, the matter was adjourned from time to time and the impugned order dated 22nd August, 2008 is passed thereby granting the application for amendment by without considering affidavit in reply. It was patently wrong on the part of learned Judge to hold and observe in the impugned order that no say was filed. It is difficult to know why such a statement is made in the order though the say was very much on record. It is noticed that impugned order dated 22nd August, 2008 is passed on the assumption that the defendants have not objected to it. Now that it is noticed that defendants have objected to the grant of the amendment : 3 : 5605-10-wp=.sxw application, it is necessary that the said objection has to be considered on merits. Hence, I am inclined to set aside the impugned order dated 22nd August, 2008 and direct the learned Civil Judge, Senior Division, Pune to hear and dispose of the application below Exh.46 on merits after considering the say of the petitioners at Exh.50. Hence, following order is passed to dispose of the petition. ORDER (i) Impugned order dated 22nd August, 2008 passed below Exh.46 in Special Civil Suit No.657 of 2005 pending in the Court of Civil Judge, Senior Division, Pune is set aside. (ii) The said application at Exh.46 is restored to the file of the said learned Judge. The learned Judge, taking up the aforesaid suit shall consider the application at Exh.46, the affidavit in reply at Exh.50 and such other documents as may be required and decide the application at Exh.46 afresh without going into the past. (iii) He shall dispose of the said application on merits. There shall be no order as to costs. (R.Y.GANOO, J.)