Bombay High Court
Harishchandra S/O. Namdeorao ... vs Madhukar S/O. Namdeorao Mate And ... on 28 August, 2017
Bench: S.C. Gupte
wp3399.15.J.odt 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 3399 OF 2015
Harishchandra S/o Namdeorao Mate,
Aged about 51 years, Occ : Agriculturist.
R/o-Mangrul Dastagir,
Tah-Dhamangaon Railway, Dist-Amravati.
.....PETITIONER
...V E R S U S...
1] Madhukar S/o Namdeorao Mate,
Aged about 71 years, Occu : Retired.
R/o-C/o A. R. Kanoje, Dr. Ashok
Near Dr. Ashok Brahmankar Clinic,
M. S. E. B. Colony, Bhandara.
2] Gunwant S/o Namdeo Mate.
Aged about 76 years. Occu : Cultivator.
R/o-Palaskhed, Tah-Chandur Railway.
Distt. Amravati.
Legal Heirs of Respondent No.2.
(i) Dharkabai wd/o Gunwant Mate,
Aged about 50 years, Occ.: Household,
R/o. Palaskhed, Tah-Chandur Railway,
District - Amravati.
(ii) Ashok Gunwant Mate,
Aged about 35 years, Occ.: Agriculturist,
R/o-Palaskhed, Tah-Chandur Railway,
District - Amravati.
(iii) Smt. Lata Manohar Matre,
Aged about 42 years, Occ.: Agriculture Labour,
R/o. Nandgaon Khandar,
District - Amravati.
::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:31:51 :::
wp3399.15.J.odt 2/4
(iv) Smt. Rekha Gunwant Mate,
Aged about 40 years, Occ.: Housewife,
R/o-Palaskhed, Tah-Chandur Railway,
District - Amravati.
(v) Smt. Nanda Duryodhan Dawande,
Aged Major, Occ.: Household,
R/o. Gadda, Post Ajani,
Tah-Kawtha, Dist-Nagpur.
(vi) Smt. Viju Nandu Khandare,
Aged Major, Occ.: Household,
R/o. Ajani, Tah-Kawtha, Dist.Nagpur.
3] Dnyaneshwar S/o. Namdeorao Mate,
Aged about 66 years. Occ.: Cultivator,
R/o-Mangrul Dastagir, Tah-Dhamangaon
Railway, District - Amravati.
4] Sulochana Devidas Band.
Aged about 66 years. Occ.: Household,
R/o-Pimpalkhuta, Tah & Dist-Amravati.
5] Shobha Gulabrao Lahabar,
Aged about 48 years. Occ.: Household,
R/o-Ravi Kiran Colony, Amravati.
6] Asha Mahadeorao Mhatre,
Aged about 50 years. Occ.: Household,
R/o. & Taluka Nandgaon, Kh.
District-Amravati.
7] Kusum Eknath Mate,
Aged about 55 years, Occ.: Not known.
8] Yogesh Eknath Mate,
Aged about 34 years, Occ.: Not known.
9] Vishnu Eknath Mate,
Aged about 36 years. Occ.: Cultivator,
Respondent Nos.7 to 9 are R/o-Palaskhed,
Taluka-Chandur Railway,
Dist-Amravati. ...... RESPONDENTS.
::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 01:31:51 :::
wp3399.15.J.odt 3/4
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri Mohammad Ateeque, Advocate for the Petitioner.
Shri J. C. Shukla, Advocate for the Respondent Nos.7 to 9.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : S. C. GUPTE, J.
th
DATE : 28
AUGUST, 2017.
ORAL JUDGMENT :
Heard learned counsel for the parties.
02] Rule. Rule made returnable forthwith and taken up for
hearing with consent of counsel.
03] The petition challenges an order passed by the trial
Court, namely, the Court of Civil Judge Senior Division at Chandur,
District-Amravati, allowing amendment of written statement of
respondent No.8. The challenge is on the footing that the
amendment was allowed after commencement of the trial without
respondent No.8 (original defendant No.6) having made out a case
under the proviso to Rule 17 Order VI of the Code of Civil
Procedure. It is apparent on the face of the impugned order that
the Court has not found any case for allowing the amendment after
commencement of the trial within the meaning of the proviso to
Rule 17 Order VI. It is apparent from the impugned order that the
application for amendment was filed after closure of the evidence
wp3399.15.J.odt 4/4
of the plaintiffs and defendant No.1. The impugned order will
have, accordingly, to be set aside. Ordinarily this Court would
have remanded a matter like this for a fresh hearing in accordance
with law. Considering, however, that the amendment simply seeks
to make out a case for loss of the original registered will and
admission of a certified copy thereof on record accordingly, which
is an application to be made in the course of the trial and no plea
needs to be set up in the writ petition in that behalf, no useful
purpose would be served by remanding the matter for a fresh
consideration.
04] Rule is, accordingly, made absolute by quashing and
setting aside the impugned order dated 9th April, 2015.
05] It is made clear, however, that respondent No.8 herein
(original defendant No.6) shall be at liberty to make out a case for
leading of secondary evidence on the ground of loss of the original
will at the trial of the suit.
06] The petition is disposed of in the above terms.
JUDGE
PBP
