=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.7642 OF 2008 NO.7642 OF 2008 NO.7642 OF 2008 Ayodhyabai R. Chandak, since deceased through her legal heir and legal representative Shri Anil R. Chandak ...Petitioner v/s Mahiboobsaheb K. Manure and ors. ...Respondents Mr G.S. Godbole i/b Mr Nitin Muley for Petitioner. Mr A.A. Valsangkar i/b Mr P.J. Das for Respondent Nos.1A and 1D. CORAM CORAM CORAM : ANOOP V. MOHTA J. : ANOOP V. MOHTA J. : ANOOP V. MOHTA J. DATE DATE DATE : 24TH NOVEMBER 2008 24TH NOVEMBER 2008 24TH NOVEMBER 2008 ORAL JUDGMENT :- 1. The petitioner / plaintiff is in possession of the property, has challenged this impugned order dated 2nd September 2008. The learned Trial Judge has already fixed the matter for argument, rejected his application for amendment. The original suit was filed by one Ayodhyabai who expired some time in the year 1984. Now, the petitioner, who is adopted son, is continuing the =2= litigation. There are clear averments in the plaint about the events which led to his adoption. There is an objection also raised about the adoption and the right to continue with the said proceedings. The parties led evidence also. The basic question therefore is whether such amendment at this stage is causing injustice and hardship to the defendants, specifically when according to them, the admission already given supports their case and by this amendment, he wants to withdraw the same and that would cause injustice. 2. The relevant paragraph of the amendment provides that in Maheshwari community, a boy of 15 years is permitted to adopt. Therefore, it is not in breach of section 10(4) of the Hindu Adoption and Maintenance Act. This is the custom of Maheshwari community and therefore, the adoption is valid. 3. This averment, according to the petitioner, is nothing but clarificatory in nature. Even otherwise, any customary practice which need to be considered and relevant for adjudication of the issue and as in the present case it goes to the root of the matter also, I see there is no reason to reject such application filed by the plaintiff. 4. The submission that the application is made at =3= belated stage and basically after evidence by both the parties but before the conclusion of the hearing, in the facts and circumstances of the case, that itself cannot be the reason to reject such application. 5. The amendment normally should be allowed unless it is with intention to prolong the matter and it affects the rights of the parties and / or changes the nature of the proceedings. In the present case, application of amendment is made to bring material on record with regard to the custom of the particular community, In a given case, the Court need to take note of custom of particular community if it is necessary to decide the issue / controversy in the suit. That plea is essential to consider the issue between the parties. The custom and practice adopted and followed by particular community need to be taken note of. That in no way changes the nature of the suit or the admission given by both the parties, if there exists such custom. 6. However, keeping all points open, I am inclined to grant this amendment for proper adjudication of the proceedings. The amendment application is allowed. 7. The petition is accordingly allowed in terms of prayer clauses (a) and (b). The leaned counsel =4= appearing for respondents seeks stay to this order. Considering the fact that the amendment application is granted, I am inclined to reject this prayer. ( ANOOP V. MOHTA J. )