Smt. Malti Wd/O. Ashok Yadav And ... vs Shri. Vaishnav Shimpi Samaj Thr. ...
2016 Latest Caselaw 1353 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.




                                                    
                          WRIT PETITION    No. 2206 OF 2016




                                                   
    1. Smt. Malti wd/o Ashok Yadav,
       aged about 60 years,
       Occupation : Housewife.




                                          
    2. Nitesh s/o Ashok Yadav
       aged about 40 years,    
       Occupation : Business

    3. Abhishekh s/o Ashok Yadav,
                              
       aged 36 years, Occupation : Business,
       all r/o Near Nail Lake, Itwari,
       Nagpur.                                          .... PETITIONERS.
      


                              VERSUS
   



    Vaishnav Shimpi Samaj,
    Smt. Gunabai Dhirde Trust Samitee,





    A Public Trust registered under the
    Bombay Public Trusts Act, 1950, bearing
    Reg. No. 98-A, through its trustee
    Vijay s/o Prabhakar Sutone
    aged about 52 years,
    c/o Hotel Simmi, Dhanshree Apartment,





    Tukdoji Putla, Manewada Road,
    Nagpur.                              ....  RESPONDENT.


                                     ....
    Shri D.N. Mehta Advocate for the Petitioners.
                                     .....




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                                            CORAM : S.B. SHUKRE, J.

DATED : 07.04.2016.

ORAL JUDGMENT :

Heard. Notice. Mr. A.S. Mehadia, learned counsel

waives notice on behalf of respondent.

2. Rule. Rule made returnable forthwith. Heard finally

by consent of parties.

3. Upon considering the arguments of both the sides, I

find that the impugned order dated 05.11.2015 cannot be

sustained simply for the reason that it is based upon an erroneous

assumption that no ground in the application filed under Order VI

Rule 17, Code of Civil Procedure, showing as to why the proposed

amendment could not be moved earlier has been shown. The

application, in fact, states the grounds. It also appears that at this

stage the amendment would be necessary for deciding the real

controversy between the parties. Due diligence test seems also to

be satisfied. The writ petition, therefore, deserves to be allowed.

4. Writ petition is allowed. The impugned order dated

05.11.2015 is hereby quashed and set aside. Proposed

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amendment be incorporated in the written statement within seven

days from the date of this order. It is further directed that the civil

suit shall be finally disposed of in accordance with law within a

period of four months from the date of order.

Rule is made absolute in above terms. No cost.

                                  ig               JUDGE
                                

    /TA/