Mina Keshavrao Solanke vs Pandit Nanabhau Kadam
2017 Latest Caselaw 6502 Bom

                                       1                       WP - 8830-2016


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                       WRIT PETITION NO. 8830 OF 2016

                       SAU. MINA KESHAVRAO SOLANKE
                                  VERSUS
                          PANDIT NANABHAU KADAM

                                     ...
                Advocate for Petitioner : Mr. Khandare N.B.
               Advocate for Respondent : Mr. Thombre S.S.
                                     ...

                                     CORAM : SUNIL P. DESHMUKH, J.
                                     DATE : 23-08-2017

JUDGMENT :

1. Heard learned counsel for the petitioner and the

respondent.

2. The petitioner, who is plaintiff in regular civil suit no. 50

of 2014 instituted for perpetual injunction in respect of the property

referred to in the suit. While the suit has been so instituted, it

appears that in paragraphs no. 5 and 7, reference has been made to

some consolidation proceedings in respect of certain lands and with

reference to the same, it has accordingly been referred to that the

land is being about to be encroached upon. Subsequently, the

respondent had filed written statement and had denied the contents

thereof and had referred to certain aspects in his additional written

statement.

2 WP - 8830-2016

3. An application exhibit 33 has been moved, submitting

that the portions appearing under paragraphs no.5 and 7 are not

relevant to the matter in controversy and, as such, the deletion of

said paragraphs and substituting paragraphs 5 and 7, as referred to

in the application have been sought. The application had been

opposed by respondent.

4. The trial court while deciding the application, appears to

have gone by the contents appearing in the application and merits

thereof and considered that it is likely to hamper the defence of the

defendant.

5. Be that as it may, while the deletion of the paragraphs

had been sought with substitution of some other content, so far as

substituted portion is concerned, there is no comment by the trial

court. Further, it has to be considered that the written statement in

respect of said paragraphs has already been appearing in the matter

with further explanation in the written statement.

6. In such a case, the consideration that the deletion is

likely to hamper the defence, may not be a proper consideration for

rejection of the application, as defence in respect of the same is a

part of written statement and further while it would be open for

3 WP - 8830-2016

defendants to file amended written statement in respect of

amendments caused pursuant to amendment application. The stage

at which suit stands appears only the written statements are filed

and issues are yet to be framed.

7. In the circumstances, taking into account view that

amendments are to be approached liberally, more so in cases of

written statement, it would be expedient that, the writ petition and

the application are allowed.

8. In the circumstances, writ petition is allowed in terms of

prayer clause (B).

9. It is open for the defendant to file amended written

statement, if they so desire, upon amendments, as asked for in the

application exhibit 33 are carried out.

[SUNIL P. DESHMUKH] JUDGE arp/