Sau. Ushabai W/O Vasant Wanare And ... vs Vasant S/O Vithobaji Wanare
2016 Latest Caselaw 6134 Bom

    34-J-WP-3789-15                                                                                1/4


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                           
                             NAGPUR BENCH, NAGPUR.




                                                                   
                              WRIT PETITION NO.3789 OF 2015


    1.  Ushabai w/o Vasant Wanare
         Aged : 45 years, Occ. Nil, 




                                                                  
    2.  Jayshree d/o Vasant Wanare,
         Aged about 15 years, Minor 
         Occupation-Education,  




                                                     
         Thr. Petitioner No.1. Mother. 
                                      
         Both R/o C/o Mahadeo Runzaji Umbarkar       
         At Chandur Biswa Tq. Nandura Dist. Buldhana.                         ... Petitioners
                                     
    -vs- 

    Vasant s/o Vithobaji Wanare 
    Aged 52 years, Occ. Service as 
              

    Treasury Officer, Yavatmal 
    R/o Ramnagar, Yavatmal. 
           



    Tq. and Dist. Yavatmal.                                                ... Respondent 


    Shri S. S. Bhalerao, Advocate for petitioners. 





    Shri N. S. Khandewale, Advocate for respondent. 

                                                      CORAM  : A.S.CHANDURKAR, J. 

DATE : October 18, 2016 Oral Judgment :

Rule. Heard finally with consent of learned counsel for the

parties.

The petitioners who are the original plaintiffs in proceedings for

grant of permanent maintenance are aggrieved by the orders passed below

Exhibits-120 and 121 dated 18/02/2015. By the order passed below Exhibit-

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120, the application for enhancement in the amount of interim maintenance

has been rejected while by the order passed below Exhibit-121, the

application for amending the plaint on the basis of subsequent developments

has been rejected.

2. The proceedings in question were filed in the year 2007 and

during pendency of these proceedings it is the case of the petitioners that

with passage of time the amount of salary that was being received by the

respondent has been enhanced. On that basis a claim was sought to be

made for amending the pleadings to bring on record said fact and to seek

enhancement in the amount of compensation. This application came to be

rejected on the ground that the amendment as sought was not in accordance

with provisions of Order VI Rule 17 of the Civil Procedure Code, 1908.

3. Shri S. S. Bhalerao, the learned counsel for the petitioner

submitted that the proceedings are pending since 2007 and as the salary of

the respondent was enhanced, amendment was necessary. He submitted that

the amendment sought was purely on the basis of increase in the amount of

salary and the consequential increase towards education expenses of

petitioner No.2.

Shri N. S. Khandewale, the learned counsel for the respondent

supported the impugned order. According to him, the respondent has retired

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from service and the amendment as sought was at a belated stage. The

petitioners were responsible for delaying the proceedings. He therefore

submitted that no interference was called for.

4. I have heard the respective counsel for the parties and I have

perused the record. It can be seen from the record that the claim for

maintenance was made in the year 2007. In the application for amendment

it was pleaded that at that point of time, the respondent was receiving salary

of Rs.16,000/- per month. However subsequently, this had increased to

Rs.47,000/- per month. It was then pleaded that the petitioner No.2 was

taking education in 8th standard and hence expenses in that regard had

increased. The trial Court by observing that the amendment as sought was

only on account of passage of time, the same was not in accordance with the

provisions of Order VI Rule 17 of the Code. Considering the fact that the

amendment is based purely on subsequent events, the aspect of due diligence

would not be attracted in these facts. If the application is allowed, the

respondent can consequently amend his pleadings and oppose the prayer

made for enhancement. Similarly, the application below Exhibit-120

deserves to be considered afresh in these circumstances.

5. In view of aforesaid, the impugned orders dated 18/02/2015

passed below Exhibits-120 and 121 are set aside.

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The application below Exhibit-121 stands allowed with liberty to

the respondent to consequently amend his pleadings. The application below

Exhibit-120 is restored to file and the trial Court shall consider this

application in accordance with law after giving due opportunity to the

parties.

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

JUDGE

Asmita