Bombay High Court
Sau. Vandana Ashok Patil vs Shri Kashinath Sakharam Tamgade ... on 22 November, 2016
Bench: Ravi K. Deshpande
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wp4533.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.4533 of 2014
Sau. Vandana Ashok Patil,
Aged about 46 years,
Occupation - Household,
R/o A-21, Area Hospital,
Lalpeth, Chandrapur,
Dist. Chandrapur. ... Petitioner
Versus
1. Shri Kashinath Sakharam Tamgade,
Resident of Wadner,
Tah. Hinganghat,
Dist. Wardha.
2. Ashok Kashinath Tamgade
(Deceased),
through his legal heirs :
2-A. Smt. Vimal Ashok Tamgade.
2-B. Rahul Ashok Tamgade,
Aged about 17 years.
2-C. Videsha Ashok Tamgade.
2-B & 2-C are Minors,
through natural guardian
mother Smt. Vimal Ashok Tamgade,
Resident of Ramnagar Ward,
Hinganghat, Dist. Wardha.
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wp4533.14.odt
3. Ravindra Kashinath Tamgade,
Resident of Wadner,
Tah. Hinganghat,
District Wardha.
4. Sau. Jayshree Mahadeo Dhabarde,
Resident of Sister Colony,
Naginabag, Chandrapur,
District Chandrapur. ... Respondents
Shri A.R. Ingole, Advocate for Petitioner.
Shri A.V. Lokhande, Advocate for Respondent Nos.2-A, 2-B and
2-C.
Coram : R.K. Deshpande, J.
nd
Dated : 22 November, 2016
Oral Judgment :
1. Rule, made returnable forthwith. Heard finally by
consent of the learned counsels appearing for the parties.
2. The challenge in this petition is to the order
dated 10-6-2014 passed by the Trial Court below Exhibit 21 in
Regular Civil Suit No.15 of 2010 rejecting the application for
amendment of plaint. The application was filed after framing of
wp4533.14.odt
the issues but before affidavit in lieu of examination-in-chief was
filed. The trial is yet to commence.
3. The Trial Court has not recorded any finding as to
whether the amendment is necessary for deciding the real
controversy involved in the matter. The suit is for partition and
separate possession. The question involved is whether the suit
properties are ancestral properties or self-acquired properties of
the defendants. The facts pleaded in the application for
amendment are necessary for deciding the real controversy
involved in the matter. No additional issues are required to be
framed, and the defendants shall be at liberty to file
consequential amendment. The Trial Court has committed an
error in rejecting the application solely on the ground that due
diligence has not been established, particularly when the proviso
to Order VI, Rule 17 of the Code of Civil Procedure is not at all
attracted.
4. In the result, the petition is allowed. The order
wp4533.14.odt
dated 10-6-2014 passed by the Trial Court below Exhibit 21 in
Regular Civil Suit No.15 of 2010, is hereby quashed and set
aside. The said application is allowed. The amendment be
carried out within a period of two weeks from the date of first
appearance of the parties before the Trial Court. The defendants
shall be at liberty to file consequential amendment to the written
statement.
5. Rule is made absolute in above terms. No order as to
costs.
JUDGE.
Lanjewar
