1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD UNREPORTED WRIT PETITION NO.8533 OF 2009 Date of decision:11/8/2010 For approval and signature HON'BLE MR. JUSTICE R.K.DESHPANDE 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes/No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/8533-09wp 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8533 OF 2009 Ambadas s/o Ramrao Dhokne, Age 30 years, Occu: Agri., r/o Toki, Tq. Gangapur, Dist. Aurangabad. ...PETITIONER (Ori.Deft.No.1) VERSUS 1. Tanhaji s/o Sahebrao Dhokne, Age 25 years, Occu: Service, r/o Chitegaon, Tq.Paithan, Dist. Aurangabad. 2. Shahaji s/o Sahebrao Dhokne, Age 23 years, Occu: Labour r/o. Chitegaon, Tq. Paithan, Dist. Aurangabad. 3. Smt.Kesharabai w/o Sahebrao Dhokne, Age 45 years, Occu: household, r/o Chitegaon, Tq.Paithan, Dist. Aurangabad. 4. Sau.Suvarna w/o Ganesh Muley, Age 22 years, Occu:Household, r/o Georai Tanda, Tq. Paithan, Dist. Aurangabad. (Ori.Plaintiffs nos. 1 to 4 ) (5. Sampat s/o Ramrao Dhokne, Age 55 years, Occu: Agri., r/o Toki, Tq. Gangapur, Dist. Aurangabad. 3 6. Sarubai w/o Ashok Dhokne, Age 45 years, Occu:Household, R/o Toki, Tq. Gangapur, Dist. Aurangabad. 7. Meenabai w/o Raju Gaikwad, Age 35 years, Occu:Household, r/o Daregaon, Post Padali, Tq. Khultabad, Dist. Aurangabad. 8. Asarabai w/o Sampat Dhokne, Age 45 years, Occu: Agri. & Household, r/o Toki, Tq. Gangapur, Dist. Aurangabad. 9. Raosaheb s/o Baburao Pawar, Age : Major, Occu: Agri., r/o Ibrahimpur, Tq. Gangapur, Dist. Aurangabad. 10. Mansub s/o Devrao Dhokne, Age Major, Occu: Agri. r/o Toki, Tq. Gangapur, Dist. Aurangabad. 11. Narayan s/o Devrao Dhokne, Age Major, Occu: Agri., r/o Toki, Tq. Gangapur, Dist. Aurangabad.) (Respondent nos.5 to 11 deleted as per order dt.5.7.2010) ...RESPONDENTS (Ori.deft.no.2 to 8) ... Mr. P.N.Sonpethkar, Adv., for the petitioners. Mr.Ramesh Ramdas Imale, Adv., for R.Nos. 1 to 4. Respondent nos. 5 to 11 deleted as per order dt.5.7.2010. 4 CORAM:R.K.DESHPANDE, J. DATE :11/8/2010 *** ORAL JUDGMENT: 1. This writ petition challenges order dated 25.11.2009 passed below Exh.23 in Regular Civil Suit No.7/2008 by the learned Joint Civil Judge, Junior Division, Gangapur. By this order the application of the petitioners, who are original defendants, filed for amendment of the written statement, has been rejected. The rejection is on the ground that the defendants were having knowledge of the facts, which are proposed to be added by way of amendment, prior to filing of the written statement, and that they have already mentioned these facts in paragraph nos. 3 and 4 of the written statement. 2. Notice in this matter was issued on 15th Dec.,2009 and the proceedings before the trial Court were stayed. In response to the notice, Shri R.R.Imale, learned Counsel, appears for respondent nos. 1 to 4 whereas respondent nos. 5 to 11 have been deleted. Learned Counsel for the parties agree that the matter can be finally disposed of at the stage of admission. Hence, Rule, made returnable forthwith. The matter is 5 heard by consent of the parties. 3. It is not in dispute that the stand of the plaintiff is that, the stand which is proposed to be incorporated by way of amendment, already subsists in paragraph nos. 3 and 4 of the written statement and this is also the finding recorded by the trial Court. It seems from the perusal of the application for amendment that the defendants are seeking amplification of the pleadings made in the written statement. It has to be noted that it is a suit for partition and separate possession. In view of this factual background, the reason given by the trial Court for rejecting the application for amendment that, the facts were within the knowledge of the defendants prior to filing of written statements, loses all its significance. The stand of the petitioners is that the written statement was filed in an hurried manner and hence amplification of the pleadings was required to be done. It is not the finding recorded by the trial Court that the proposed amendment changes the nature of the suit or that it has been moved at belated stage or that it is barred by time. In view of this, the order passed by the trial Court cannot be sustained. 4. In the result, the instant writ petition is allowed. The order dt.25.11.2009 passed 6 below Exh.23 in Regular Civil Suit No.7/2008 by the learned Joint Civil Judge, Junior Division, Gangapur, is hereby quashed and set aside. The application ( Exh.23) filed by the petitioner is allowed. The amendment to be carried out within a period of two weeks from the date on which the trial Court receives the writ from this Court. The trial Court is further directed to expedite the suit. No order as to costs. Rule made absolute in above terms. (R.K.DESHPANDE) JUDGE ... agp/8533-09wp