Bombay High Court
Padmabai Tanhaji Gade vs Saraswati Tanhaji Gade And Others on 14 January, 2022
Bench: S.V. Gangapurwala
(1) 907-wp-2862-2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2862 OF 2013
PADMABAI TANHAJI GADE ..PETITIONER
VERSUS
SARASWATI TANHAJI GADE AND OTHERS ..RESPONDENTS
...
Mr. Mahesh V. Ghatge, Advocate for the Petitioner.
Mr. Rajendra Chavan h/f Mr. V. A. Bagdiya, Advocate
for Respondent No.3.
...
CORAM : S. V. GANGAPURWALA, J.
DATED : 14th JANUARY, 2022.
PER COURT:-
1. The petitioner filed Suit for partition
and separate possession. The parties led their
evidence. After the evidence is concluded, the
petitioner filed application Exhibit-71 for adding
one property as a Suit property which stood in the
name of father-in-law of the petitioner and
transferred in the name of son of deceased's son
from second wife in the year 2012. The said
application is rejected.
2. Mr. Ghatge, learned counsel for petitioner
submits that, the said property owned by the
father-in-law is a joint family property. The
entire details were not within the knowledge of the
petitioner. The petitioner is also taking
exception to the transaction of sale between
defendant no.4 and defendant nos.2 and 3.
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(2) 907-wp-2862-2013
3. Mr. Bagdiya, learned counsel for
respondents supports the judgment of the Trial
Court and submits that, the amendment is sought
when the matter reached the stage of final
argument. The petitioner was having knowledge of
the said property when she filed Suit in the year
2009. The plaintiff could have added said property
as Suit property in the year 2009 only. It is only
after the Suit property is transferred in favour of
defendant nos.2 and 3 surreptitiously the
application is filed for amendment.
4. I have considered the submissions
canvassed by the learned counsel for respective
parties.
5. It is trite that, the merits of the
amendment application are not to be gone into while
considering the application for amendment. It is a
fact that, there is delay on the part of the
petitioner in filing the application for amendment.
The petitioner could have included the said
property as a Suit property at the time of filing
of the Suit. However, it appears that, the
petitioner is aggrieved after the defendant no.4
alienated the said property in favour of defendant
nos.2 and 3 in the year 2012 and thereafter, the
amendment application is filed. The defendants
will have every opportunity to take all the
available defences as against the said property.
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(3) 907-wp-2862-2013
For the delay caused, the petitioner can be mulct
with cost.
6. In light of that, I pass the following
order:
ORDER
A. The impugned order is quashed and set
aside and the application Exhibit-71 for
addition of Suit property bearing Block No.32
admeasuring 98R is allowed on a condition that
petitioner pays cost of Rs.3000/- each to
defendant nos.2, 3 and 4 within a period of
four weeks.
B. The cost be deposited in the Trial Court.
If the cost as directed is not deposited, then
the application Exhibit-71 stands rejected.
If the cost is deposited as directed, then the
application Exhibit-71 stands allowed. In
that event, defendants are entitled to file
additional written statement with regard to
the amended averments. The parties are
entitled to lead further evidence only to the
extent of the amendment made and the property
concerned.
7. Writ Petition is disposed of. No costs.
(S. V. GANGAPURWALA)
JUDGE
Devendra/January-2022
