1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATEJURISDICTION WRIT PETITION NO. 3095 OF 2011 Baburao Raghunath Ganore ...Petitioner Versus Pandharinath Amrut Chite & Others ...Respondents Mr.G.R.Agrawal for the Petitioner Mr.Tushar Sonawane for the Respondent No.1 None for the other respondents. CORAM:- R.Y.GANOO, J. DATED:- 19th SEPTEMBER, 2011. P.C. 1. Rule. Rule made returnable forthwith. 2. Learned Advocate for the Respondent no.1 who is the contesting respondent waives service of this writ petition. By consent, petition is taken up for hearing. 2 3. The petitioner filed Special Civil Suit No.167 of 2008 in the Court of Civil Judge, Junior Division, Nashik for partition in respect of various properties. During the pendency of the suit, in or about January 2011 the petitioner filed an application at Exhibit 53 praying that three persons named in the said application should be joined as party defendants as they are necessary parties in the suit for partition. That application came to be rejected by judgment and order dated 18.3.2011 passed by the learned 4th Joint Civil Judge, Senior Division, Nashik. 4. I have heard learned Counsels on both sides. Reading of the impugned judgment goes to show that the learned Judge was impressed by the words appearing in the application at the top “ Orders 6 Rule 17 and Section 151”. A reading of the order would go to show that the said court treated the said application as application for amendment of the plaint and rejected the same primarily on the ground that the suit is of 2008 and the application is made after the evidence has commenced and the case of the petitioner does not fall within the proviso of Order 6 Rule 17 of CPC. 3 5. I have perused the application at Exhibit 53 as well as the impugned order. A perusal of the application at Exhibit 53 shows that the petitioner wanted to add names of three persons and styled them as defendant no.12 to 14. According to the petitioner, the information as regards birth of these three persons through the mother of the petitioner came to be disclosed in the course of evidence. Nodoubt, this application is to be treated as application under Order 1 Rule 10. It is true that at page 2 of the application, the petitioner wanted to add line English Translation which is as follows “ the Petitioner’s mother Radhabai married on 2nd occasion and gave birth to persons who are sought to be joined as defendant nos.12 to 15.” This line was required to be added by the petitioner as and by way of additional information as to why the three persons are to be joined as party defendant nos.12 to 15. Surely, that line cannot be treated as application for amendment of the plaint. In my view the course adopted by the said court is incorrect. He should have appreciated the sense in which the application at Exhibit 53 is made and in normal course, he should have granted it as these 3 persons are required to be joined as party defendants. In such circumstances, I am inclined to set aside the impugned order and grant application at 4 Exhibit 53. Hence, following order is passed to dispose of this petition. ORDER i. Order dated 18.3.2011 passed by the learned Joint Civil Judge, Junior Division, Nashik, in Special Civil Suit No.167 of 2008 is set aside. Application below Exhibit 53 is granted. The petitioner to carry out amendment on or before 30.9.2011. ii. Petitioner to serve amended copy of the plaint upon the existing defendants as well as the persons who are to be joined as defendants on or before 21.10.2011. iii The persons who are presently shown as defendants can file additional written staement. Persons who are to be joined afresh will have to file written statement as per law. iv. It is clarified that merely because this application for joining of three ladies as party defendant is granted, it does not mean that these persons have a share in the estate which is the subject matter of 5 the suit. The court shall decide the rights of these three persons on merits along with other persons. (R.Y.GANOO, J.)