1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 3113/2008 (Nilima Prabhakar Gaddamwar & others vs. Avinash Rajanna Talpalliwar) ====================================== CORAM : B.P.Dhamadhikari, J. DATE : 21 st NOVEMBER, 2008 Heard Advocate Anjan De for the petitioner / defendant no.1 and Advocate Potbhare, for respondent/ original plaintiff. The application for amendment moved vide Exh.63 has been rejected by 9th Joint Civil Judge, Junior Division, Chandrapur, mainly on the ground that the High Court gave liberty to the petitioner to move fresh application for amendment with new facts and after that liberty, the application moved was identical with the earlier application, which came to be rejected and formed subject matter of the Writ Petition No. 5239/2007. Perusal of the order dated 14th January, 2008, of this Court shows that this Court accepted the submissions of Advocate Anjan De that there were certain omissions in the earlier application and no grounds leading to necessity of amendment. After imposing costs of Rs.3000/- those omissions were allowed to be corrected. The costs have accordingly 2 been paid. Advocate De has pointed out that the 'will' sought to be produced on record was discovered during the pendency of the suit and this statement which did not appear in the earlier application for amendment has been added in the present application for amendment at Exh. 63. He, therefore, states that there is failure to exercise the jurisdiction on the part of the trial Court. Advocate Potbhare on the other hands states that the present petitioner who is defendant No.1 in the suit practically sat tight for one year and thereafter moved earlier application for amendment after the evidence was over. He states that there is no different between the earlier application and Exh. 63 and the trial Court has rightly rejected it. He further argues that if the amendment is allowed, the question of proving of 'will' will arise and it will further protract the trial. I find that the main reason for rejecting the application at Exh. 63 is that the High Court permitted the present petitioner to file application for amendment with new facts. It is apparent that the High Court has not passed any such remark in its judgment dated 14th January, 2008. It is apparent that in earlier application for amendment in very first para, two sentences got mixed together and part of earlier 3 sentence was lost therein. That error has been corrected in the subsequent application and it has been stated that during the pendency of the suit, 'will' of deceased Ramchandra was find out. The reasons given by the lower Court, therefore, cannot be sustained. The impugned order dated 30th April, 2008, below Exh. 63 is quashed and set aside. Application Exh. 63 is restored for fresh consideration by the said court in accordance with law. All the objections raised by Advocate Potbhare are kept open for consideration by the said Court. Rule accordingly. No order as to costs. JUDGE Rvjalit