Writ Petition No. 9090 of 2012 · Bombay High Court

Mr.A.A.Mukhedkar, advocate for the petitioners. CORAM : S.V.GANGAPURWALA,J. Date : 01.11.2012. PER COURT :

Heard. The application for amendment filed by the plaintiff by virtue of which one property is included as a suit property and a party is being added is allowed by the trial Court. Aggrieved thereby, the present petition.

Mr.Mukhedkar, learned counsel for the petitioners submits that in the Written Statement itself, the petitioners had specifically stated about the property bearing S.No.68 - Gat No.226 and about the rights of the party proposed to be added. Thereafter the parties led their evidence and the judgment was delivered. In appeal, the appellate Court set aside the judgment and remanded the matter back for fresh decision as the Court which had earlier decided the matter lack jurisdiction. The learned counsel submits that no W.P.No.9090/12 2 reasons are given by the plaintiff for not filing the amendment application earlier. Such amendment application at a belated stage is not maintainable and is hit by proviso to Rule 17 of Order VI of the C.P.C. When the matter is remanded only for giving decision, the said application could not have been entertained.

It is not disputed that earlier judgment delivered by the Court is set aside in appeal and the matter is remanded back. The suit is for partition and separate possession of ancestral properties. The plaintiff has averred in the amendment application that after getting the 7/12 extracts and going through the revenue record, these facts were fortified. The suit being a substantive suit for partition and separate possession, all properties are required to be included as suit properties. By addition of the property, the nature of the suit would not change, it would remain a suit for partition. For the delay that has been caused, the trial Court has mulct the plaintiff with costs. The trial Court has exercised the jurisdiction in allowing the amendment application. The petitioners shall have every opportunity to file the amended Written Statement and to adduce evidence in respect of the said amendment allowed.

In light of the above, I am not inclined to entertain the Writ Petition in Writ jurisdiction of this Court under Article 227 of the Constitution of India.

The Writ Petition is dismissed. However, there shall be no W.P.No.9090/12 3 order as to costs. Dt.01.11.2012. asp/office/wp9090.12

(S.V.GANGAPURWALA,J.)