34-J-WP-3789-15 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3789 OF 2015
1. Ushabai w/o Vasant Wanare
Aged : 45 years, Occ. Nil,
2. Jayshree d/o Vasant Wanare,
Aged about 15 years, Minor
Occupation-Education,
Thr. Petitioner No.1. Mother.
Both R/o C/o Mahadeo Runzaji Umbarkar
At Chandur Biswa Tq. Nandura Dist. Buldhana. ... Petitioners
-vs-
Vasant s/o Vithobaji Wanare
Aged 52 years, Occ. Service as
Treasury Officer, Yavatmal
R/o Ramnagar, Yavatmal.
Tq. and Dist. Yavatmal. ... Respondent
Shri S. S. Bhalerao, Advocate for petitioners.
Shri N. S. Khandewale, Advocate for respondent.
CORAM : A.S.CHANDURKAR, J.
DATE : October 18, 2016 Oral Judgment :
Rule. Heard finally with consent of learned counsel for the parties.
The petitioners who are the original plaintiffs in proceedings for grant of permanent maintenance are aggrieved by the orders passed below Exhibits-120 and 121 dated 18/02/2015. By the order passed below Exhibit-
::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:50:11 :::34-J-WP-3789-15 2/4 120, the application for enhancement in the amount of interim maintenance has been rejected while by the order passed below Exhibit-121, the application for amending the plaint on the basis of subsequent developments has been rejected.
2. The proceedings in question were filed in the year 2007 and during pendency of these proceedings it is the case of the petitioners that with passage of time the amount of salary that was being received by the respondent has been enhanced. On that basis a claim was sought to be made for amending the pleadings to bring on record said fact and to seek enhancement in the amount of compensation. This application came to be rejected on the ground that the amendment as sought was not in accordance with provisions of Order VI Rule 17 of the Civil Procedure Code, 1908.
3. Shri S. S. Bhalerao, the learned counsel for the petitioner submitted that the proceedings are pending since 2007 and as the salary of the respondent was enhanced, amendment was necessary. He submitted that the amendment sought was purely on the basis of increase in the amount of salary and the consequential increase towards education expenses of petitioner No.2.
Shri N. S. Khandewale, the learned counsel for the respondent supported the impugned order. According to him, the respondent has retired ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:50:11 ::: 34-J-WP-3789-15 3/4 from service and the amendment as sought was at a belated stage. The petitioners were responsible for delaying the proceedings. He therefore submitted that no interference was called for.
4. I have heard the respective counsel for the parties and I have perused the record. It can be seen from the record that the claim for maintenance was made in the year 2007. In the application for amendment it was pleaded that at that point of time, the respondent was receiving salary of Rs.16,000/- per month. However subsequently, this had increased to Rs.47,000/- per month. It was then pleaded that the petitioner No.2 was taking education in 8th standard and hence expenses in that regard had increased. The trial Court by observing that the amendment as sought was only on account of passage of time, the same was not in accordance with the provisions of Order VI Rule 17 of the Code. Considering the fact that the amendment is based purely on subsequent events, the aspect of due diligence would not be attracted in these facts. If the application is allowed, the respondent can consequently amend his pleadings and oppose the prayer made for enhancement. Similarly, the application below Exhibit-120 deserves to be considered afresh in these circumstances.
5. In view of aforesaid, the impugned orders dated 18/02/2015 passed below Exhibits-120 and 121 are set aside.
::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:50:11 :::34-J-WP-3789-15 4/4 The application below Exhibit-121 stands allowed with liberty to the respondent to consequently amend his pleadings. The application below Exhibit-120 is restored to file and the trial Court shall consider this application in accordance with law after giving due opportunity to the parties.
Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE Asmita ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:50:11 :::