1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7975 OF 2009 Sk. Raheman s/o Sk. Mohmmad age 58 years, occ. agril. r/o Taka, Tq. Ambad Dist. Jalna. .. PETITIONER VERSUS 1 Sk. Katthu s/o Sk. Munir age 42 years, occ. agril r/o Nalewadi, Tq. Ambad Dist. Jalna. 2 Halmabi w/o Sk.Chand age 52 years, occ. household r/o Taka, Tq. Ambad Dist. Jalna. 3 Badamrao s/o Nanasaheb Mhaske age 50 years, occ. agril & money rental r/o Taka, Tq. Ambad Dist. Jalna. .. RESPONDENTS Mr. M.B. Sadanshiv, Advocate for the petitioner. Mr. B.A. Dhengle, Advocate for respondent nos. 1 to 3. ===== CORAM : R. M. BORDE, J. DATE : 20 th APRIL, 2010. ORAL JUDGMENT : 2 1 Heard. 2 Rule. With the consent of the parties, the matter is taken up for final hearing at admission stage. 3 Application seeking amendment to the plaint has been turned down by the trial court in view of order passed on 7-7-2009 below exh. 20 in Regular Civil Suit no. 123/2008. 4 Plaintiff instituted Regular Civil Suit no. 123/2008 claiming decree in respect of recovery of possession of the property described in the suit. It is the contention of the plaintiff that defendant no. 3 is a money lender and the petitioner has borrowed loan amount from him and, by way of security for the loan obtained, he has executed an instrument of sale. However, possession of the property was agreed to remain with the plaintiff. However, defendant, in the year 2007 has assumed forcible possession over the suit property. The property has been mutated in the name of defendant no. 2. Plaintiff by raising necessary contentions prayed for recovery of possession of the property. The suit came to be presented by the plaintiff on 10-4-2008. Plaintiff sought amendment to the plaint by presenting application on 3 5-3-2009. The plaintiff wanted to rely upon contemporanious agreement executed in his favour by defendant thereby agreeing to reconvey the property. Plaintiff contends that the proposed amendment is not likely to change the nature of the suit and the amendment is of explanatory character. Application tendered by the plaintiff was opposed by defendants contending that the same is presented at belated stage and that the proposed amendment is likely to change the nature of the suit. Trial court after considering the contentions raised by the respective parties was pleased to reject the application. 5 I have perused the application tendered by the petitioner / original plaintiff as well as the impugned order passed by the trial court. Plaintiff has already raised contentions in the plaint in respect of nominal nature of the sale transaction. He has also pleaded that defendant is dealing with money lending business and the document of sale has been executed in lieu of advancement of money by the defendant. Plaintiff is seeking indulgence of the court to raise necessary contentions in the plaint. The proposed amendment is in explanatory character and in any way does not change the nature of the suit. Admittedly, issues in the matter are not yet framed. Defendants will have an opportunity to controvert the contentions raised in 4 the amended plaint and no prejudice is likely to be caused to the defendants. In this view of the matter, the order passed by the trial court rejecting the application tendered by the plaintiff on 7-7-2009 deserves to be quashed and set aside. In the result, the petition is allowed. Order passed by the Civil Judge, J.D. , Ambad on 7-7-2009 below exh. 20 in Regular Civil Suit no. 123/2008 is quashed and set aside. Application tendered by the petitioner / plaintiff at exh. 20 shall be deemed to have been allowed. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.) dyb/office/wp7975.09.odt