1 wp5756.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.5756/2016
1. Sau. Jyoti Narayansingh Chauhan,
aged about 62 Yrs., Occu. Retired,
R/o "Diptigandha", 10-B, Naik Layout,
Gopal Nagar, Parsodi Road, Nagpur.
2. Shri Ratnakar S/o Haribhau Mendule,
aged about 59 Yrs., Occu. Service,
R/o Plot No.1332, Darshan Colony,
Nandanwan, Nagpur.
3. Shri Ramesh S/o Baburao Harsule,
aged about 67 Yrs., Occu. Retired,
R/o Plot No.10, Swarupnagar,
Behind Ram Mandir, Swawlambi Nagar,
Nagpur. ..Petitioners.
..Vs..
1. Dr. Krishnarao Jagobaji Parate,
aged about 80 Yrs., Occu. Retired,
R/o Plot No.220, Laxmi Nagar,
Nagpur.
2. Shri Dilip S/o Ruprao Deshmukh,
age Major, Occu. Retired, R/o
Shivarpan Colony, Near Kathora
Naka, Behind Meghe Complex,
Amravati.
3. Shri Dadarao S/o Lakhuji Dambhare,
age Major, Occu. Dismissed, R/o Plot
No.820, Ashirwad Nagar, Hudkeshwar
Road, Nagpur.
4. Shri Dyanobai S/o Manikrao Ghuge,
age Major, Occu. Service,
PSO C/o Superintendent of Police,
Yavatmal, Tahsil and District
Yavatmal. ..Deleted.
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..Respondents.
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Shri S.Y. Deopujari, Advocate for the petitioners.
Shri Harish Dangre, Advocate for respondent No.1.
Shri B.G. Kulkarni, Advocate for respondent No.2.
Shri D.A. Mahajan, Advocate for respondent No.3.
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CORAM : Z.A.HAQ, J.
DATE : 2.5.2017. ORAL JUDGMENT
1. Heard Shri S.Y. Deopujari, Advocate for the petitioners, Shri Harish Dangre, Advocate for the respondent No.1, Shri B.G. Kulkarni, Advocate for the respondent No.2 and Shri D.A. Mahajan, Advocate for the respondent No.3.
2. Rule. Rule made returnable forthwith.
3. The defendant Nos.2 to 4 have challenged the order passed by the trial Court by which the application (Exh. No.39) filed by them under Order VI Rule 17 of the Code of Civil Procedure seeking permission to amend the written statement is dismissed.
By the proposed amendment the defendants seek to incorporate pleadings objecting to the maintainability of the civil suit on the ground that notice under Section 80 of the Code of Civil Procedure was not given before filing the civil suit. The proposed amendment is opposed by the plaintiff on the ground that the claim of the plaintiff against the defendant Nos.2, 3 and 4 is in ::: Uploaded on - 12/05/2017 ::: Downloaded on - 28/08/2017 01:17:46 ::: 3 wp5756.16 their personal capacity and not in the capacity of government servants. This issue is not required to be adverted to at this stage and it will have to be considered on merits. At this stage, the Court is required to consider nature of amendment, whether it changes the nature of defence and whether there is any statutory bar for allowing the proposed amendment. The plaintiff has not been able to point out either any statutory bar or that the proposed amendment changes the nature of defence. Therefore, the proposed amendment is required to be allowed.
4. Hence, the following order:
(i) The impugned order is set aside. (ii) The application (Exh. No.39) filed by the defendant Nos.2, 3 and 4 is allowed. (iii) As the plaintiff is senior citizen, the trial Court is directed to dispose
of the civil suit till 29th September, 2017.
Rule is made absolute in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE Tambaskar.
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