Bhaskar Shankarrao Girhe vs Radheshyam Bairulal Khandelwal
2016 Latest Caselaw 2985 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                          
                             NAGPUR BENCH, NAGPUR.




                                                                  
                              WRIT PETITION NO.492 OF 2015


    Bhaskar Shankarrao Girhe 
    Aged about 55 years, Occ. Labourer




                                                                 
    r/o Deulgaon Mali, Taluka : Mehkar, 
    Dist. Buldhana                                                   ... Petitioner
     
    -vs- 




                                                    
    Radheshyam Bairulal Khandelwal    
    Aged about 63 years, Occ. Business 
    R/o Ward No.7, Mehkar, Tal. Mehkar
    Dist. Buldhana                                                   ... Respondent
                                     
    Shri S. A. Chaudhari, Advocate for petitioner. 
    Respondent served. 
            


                                                      CORAM  : A.S.CHANDURKAR, J. 

DATE : JUNE 17, 2016

Oral Judgment :

In view of notice for final disposal issued earlier with which the

respondent is shown to be served, the learned counsel for the petitioner has

been heard. Rule. Rule made returnable forthwith.

The petitioner is aggrieved by the order dated 06/12/2014 passed

by the trial Court rejecting the application for amending the application for

condonation of delay. The petitioner is the original defendant in R.C.S.

No.272 of 2001 which was decreed ex-parte on 21/09/2002. The petitioner

filed an application for setting aside the ex-parte decree on 20/09/2008

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along with an application for condonation of delay. Thereafter the

petitioner filed his affidavit on record. On 06/12/2014, the petitioner moved

an application for amending the application for condonation of delay so as

to correct certain typographical errors. This application has been rejected by

the trial Court.

2. Shri S. A. Choudhary, the learned counsel for the petitioner submitted

that though the trial Court found that the amendment was necessary for the

proper decision of the case, the amendment was disallowed only on the

ground that the proceedings would be delayed. He submitted that correction

of dates would not cause any prejudice to the respondent and that only

typographical errors were sought to be corrected.

3. Having perused the application for amendment below Exhibit-31,

it can be seen that certain dates are sought to be corrected by stating that the

same were wrongly mentioned in the application on account of typing

mistake. It does not appear that there was deliberate delay in moving the

said application considering the fact that the petitioner was praying for

setting aside the ex-parte decree. The respondent could have been

compensated by awarding costs for the delay as caused. In view of aforesaid,

the following order is passed :

(i) The order dated 06/12/2014 passed below Exhibit-31 in M.C.A.

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                   No.05/2008 is set aside.




                                                                                                
    (ii)           The application  below Exhibit-31 is allowed subject to costs of




                                                                      

Rs.2000/- to be paid by the petitioner to the respondent in the

trial Court within period of six weeks from today. On such costs

being paid to the respondent, the petitioner would be entitled to

carry out the amendment in the application for condonation of

delay and also file additional affidavit in support of his evidence.

Rule is made absolute in aforesaid terms with no order as to costs.

JUDGE

Asmita