Shri. Motiram Balu Thakre vs M/S. Rajani Developers And Ors
2012 Latest Caselaw 249 Bom

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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

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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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