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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4635 of 2012
Motiram Balu Thakre : Petitioner
versus
M/s. Rajani Developers & Ors. : Respondents
Ms Preeti Walimbe for the Petitioner Mr.K. H. Holambe Patil for the Respondent No.1 CORAM:- R M SAVANT, J DATED :- 20th OCTOBER, 2012.
ORAL ORDER 1 At the outset, the Learned Counsel for the Petitioner seeks deletion of the Respondent Nos.2 to 9. The said Respondents are accordingly allowed to be deleted at the risk of the Petitioner. Amendment to be carried out forthwith.
2 Rule with the consent of the parties made returnable forthwith and heard.
3 The Petitioner aggrieved by the order dated 16-3-2012 passed by the Learned 3rd Joint Civil Judge, Senior Division, Kolhapur, has invoked the Writ Jurisdiction of this court under Article 227 of the Constitution of India. By the said order, the Trial Court has rejected the application for amendment of the Written Statement. It is not necessary to burden this order with unnecessary facts. Suffice it to say that the rejection of the MMJ 1/3 ::: Downloaded on - 02/08/2016 17:25:08 ::: wp-4635-12.sxw application for amendment is on the ground that the said application does not contain the proposed amendments. This is the principal ground on which the said application has been rejected. However, thereafter on presumption that the amendments involve withdrawal of admission, the Learned Judge had proceeded to hold that the withdrawal of admission cannot be allowed, as it would change the nature of the defence. The question which begs an answer is, if the amendment application did not contain the proposed amendment, how the Learned Judge has arrived at a conclusion as regards withdrawal of admission.
4 Be that as it may, since the amendment application did not contain the proposed amendment, in my view, it would be just and proper to set aside the impugned order and issue the following directions:
(I) It would be open for the Petitioner i.e. the Defendant No.2 to file a fresh application for amendment setting out the proposed amendment, the same to be done within four weeks of the parties appearing before it.
(ii) The Respondent No.1 herein i.e. the Plaintiffs would be entitled to file its reply to the said application.
(iii) The Trial Court to hear and decide the said application within a period of four weeks thereafter.
(iv) The Trial Court to hear and decide the said application on its own
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merits and in accordance with law having due regard to the well settled principles applicable to Order 6 Rule 17 of Civil Procedure Code.
(v) The parties to appear before the Trial Court on 29 th October, 2012.
The time frame stipulated as above would commence from the said date.
(vi) With the aforesaid observations the Writ Petition is disposed of.
Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.
(R M SAVANT, J)
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