Sau. Gangubai W/O Gangadhar ... vs Smt. Sundrabai Gajanan Chokhare ...
2017 Latest Caselaw 1549 Bom

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                                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                  NAGPUR BENCH : NAGPUR


                                                       WRIT PETITION NO.1696/2016


Sau. Gangubai W/o Gangadhar Gaurkar,
aged about 41 Yrs., Occu. Housewife, 
R/o Chek Futana, Tq. Pombhurna, 
Distt. Chandrapur.                                                                                                                                             ..Petitioner.

           ..Vs..

1.         Smt. Sundarabai Gajanan Chokhare,
           aged about 61 Yrs., Occu. Household. 

2.         Shri Manoj S/o Gajanan Chokhare,
           aged about 41 Yrs., Occu. Agriculturist. 

3.         Sau. Sangita W/o Sanjay Divse,
           aged about 48 Yrs., Occu. Household. 

           Defendants No.1 to 3 R/o Ashta, 
           Tq. Pombhurna, Distt. Chandrapur.

4.         Ku. Deepak S/o Vinod Chokhare,
           aged about 12 Yrs., Occu. Student
           (since minor represented through his 
           natural guardian mother Smt. Kiran
           Vinod Chokhare), R/o Varur, 
           Tq. Rajura, Distt. Chandrapur.                                                                                                          ..Respondents.
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            Shri N.R. Bhishikar, Advocate for the petitioner.
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                                                                 CORAM :  Z.A.HAQ, J.

                                                                 DATE  :     7.4.2017.


ORAL JUDGMENT

1.                        None   appears   for   the   respondents   /   original   defendants   though



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served.       Heard   Shri   N.R.   Bhishikar,   Advocate   for   the   petitioner   /   original
plaintiff.


2.                Rule.  Rule made returnable forthwith.

3. In this petition, the plaintiff has challenged the order passed by the trial Court by which the application (Exh. No.79) filed by the defendants seeking permission to amend the written statement is allowed.

It is recorded that the application (Exh. No.79) is filed after the recording of evidence of plaintiff is complete and the affidavit in lieu of examination-in-chief of defendants' witness No.1 is filed. In the application (Exh. No.79) there are no averments to show that inspite of exercise of due diligence the defendants could not bring on record the facts which now they want to bring on record by the proposed amendment. Moreover, the proposed amendment shows that the defendants were having knowledge of the facts since the time of filing of the written statement and there is no explanation why the facts were not incorporated in the written statement or were brought on record earlier. The learned trial Judge has failed to consider the above relevant aspects and, therefore, impugned order is unsustainable.

4. Hence the following order:

(i)               The impugned order is set aside.
(ii)              The application (Exh. No.79) filed by the defendants is rejected.
                  Rule made absolute in the above terms. 

In the circumstances, the parties to bear their own costs.

JUDGE

Tambaskar.