Allowed

Tatoba Balu Talekar v. Sonabai Vithoba Talekar and Ors.

Bombay HC9 Mar 2011WP/4395/2010

Case brief

AI extract

What is this about?

Single judge allowed a writ petition challenging the rejection of an application to amend a written statement in a partition suit. The high court quashed the impugned order and directed the trial court to allow the amendment subject to the deposit of costs.

What did the court decide?

Quashed impugned order; allowed application for amendment of written statement; ordered deposit of Rs. 5000/- costs.

Tatoba Balu Talekar Vs Sonabai Vithoba Talekar and Ors. — Partition | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION.

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WRIT PETITION NO. 4395 OF 2010

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Tatoba Balu Talekar... ..... .... ..Petitioner. V/s Sonabai Vithoba Talekar & Ors. .... ..Respondents.

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Mr.Prashant S. Bhavke, Adv. For the petitioner. Mr.TAnaji Matugude, Adv. For R.No.2.

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CORAM: B.R. GAVAI, J. 9^th March, 2011

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PC:

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Rule. Rule made returnable forthwith.

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Heard by consent.

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Shri Matugude, waives services for respondent Nos. 1 and 2.

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Since no order adverse to respondent Nos. 3 and 4 is being passed notice on rule for said respondents is waives.

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By way of present petition the petitioner challenges the order dated 16.2.2010 vide which an application filed by the present petitioner for amendment of written statement came to be rejected. The respondent Nos. 1 and 2 have filed suit for partition. Respondents 3 and 4 are defendants to the said suit. In the said suit written statement came to be filed in the year 2003. However subsequently an application came to be filed by the present petitioner for amendment of written statement on 16.2.2010. Same is rejected on the said date. Being aggrieved thereby the present petition is filed.

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Shri Bhavke, learned counsel appearing for the petitioner submits that the learned trial Court has grossly erred in rejecting the application. He submits that in the interest of justice application ought to have been allowed.

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Shri Matugude, learned counsel appearing for the respondents 1 and 2

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vehemently opposes the said submission. He submits that the learned trial Court has rightly rejected the application. As such no interference is called for. 5. Suit is of the year 2001 and therefore would not be governed by amended provisions of Order 6 Rule 17 of Civil Procedure Code. Apart from that the affidavit in lieu of examination in chief has been filed on the same date on which the application for amendment was made and rejected. As such when the application was made the trial was yet to commence.

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By now it is settled law that Courts have to take liberal view in grant of amendment. In so far as grant of amendment to written statement is concerned the same has to be granted more liberally. In so far prejudice that has been caused to the respondents herein is concerned same could be compensated by saddling some costs on the petitioner. In that view of the matter petition is allowed. Impugned order dated 16.2.2010 is quashed and set aside. Application of the present petitioner below Ex.43 for amendment of the written statement is allowed. Amendment in the said written statement be carried out within four weeks from today. The petition is allowed subject to costs quantified at Rs.5000/- to be paid by the petitioner to respondent Nos. 1 and2 (orig. plaintiffs). Costs to be deposited in trial Court within a period of four weeks from today. On the deposit being made respondents 1 and 2 would be at liberty to withdraw the same.

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Condition of deposit of costs is pre-condition for allowing the application for amendment of written statement. If deposit is not made within the stipulated period the petitioner shall stand dismissed automatically. Rule made absolute in aforesaid terms with no order as to costs.

Tatoba Balu Talekar v. Sonabai Vithoba Talekar and Ors.

Case brief

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Tatoba Balu Talekar v. Sonabai Vithoba Talekar and Ors.

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