Advocates:
['ABHIJIT MARUTI PATIL', 'ABHIJIT MARUTI PATIL', 'ABHIJIT MARUTI PATIL', 'KASHINATH KRISHNA JADHAV', '', 'JITENDRA KASHINATH JADHAV']

40.wp.2066.22.doc

Ajay

IN

IN

THE

THE

HIGH

HIGH

COURT

COURT

OF

OF

JUDICATURE

JUDICATURE

AT

AT

BOMBAY

BOMBAY

CIVIL APPELLATE

CIVIL APPELLATE

JURISDICTION

JURISDICTION

WRIT PETITION NO. 2066 OF 2022

Sayyed Latif Nissar Husainsha Fakir

Deceased through Legal Heirs

Sayyad Zakir Latif Inamdar and Ors.

..Petitioners

Versus

Sayyad Ahmad Nissar Husainsha Fakir

..Respondent

....................



Mr. Kalpesh Patil a/w. Mr. Abhijit Patil, Advocate for Petitioners.



Mr. K.K. Jadhav, Advocate for Respondent.

...................

CORAM :MILIND N. JADHAV, J.

DATE

:DECEMBER 19, 2022.

P.C.

:

1.

Heard Mr. Patil, learned Advocate appearing for Petitioners

and Mr. Jadhav, learned Advocate appearing for Respondent at length.

2.

Perused the impugned order dated 19.03.2021 passed below

Exhibit-17 in Regular Civil Appeal No.342 of 2017. Application taken

out by the Petitioner – Original Defendant sought amendment to the

written statement filed in Regular Civil Suit No.9 of 2007 dated

26.02.2007.

3.

Record indicates that the parties have been litigating since

the year 1980. Two earlier Regular Civil Suits between the parties

with respect to challenge to the mutation entry and the substantive

shares in partition have already been dealt with by the learned Trial

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40.wp.2066.22.doc

Court. The stand taken by the Petitioners in the written statement

dated 17.03.2003 filed in the suit which was decreed by the learned

Trial Court was to be effect that the Respondent’s share of 22 paisa in

100 paisa was by virtue of oral gift and that stand has been

adjudicated by the learned Trial Court. Before the Appellate Court,

the Petitioner has come up with a fresh case stating in the year 1972,

the father of the Petitioner had in fact partitioned the shares of the

respective parties and that the Petitioner would be entitled to 1/8^th

share and the mother would get 14/64 share.

4.

The learned Trial Court after examining the stand taken by

the Petitioner in the earlier written statement dated 17.03.2003 as

well as the additional written statement filed to the amended plaint

dated 26.02.2007 came to the conclusion that the proposed

amendment sought by the Petitioner amounted to withdrawal of the

admissions made by the Petitioner during the cross-examination and

the case put up in the written statement. In that view of the matter,

proposed amendment was not only inconsistent with the statement

made in the written statement, but also the evidence and the

conclusion arrived by the learned Trial Court. The finding returned by

the learned Trial Court in paragraph No.10 of the impugned order is

that the proposed amendment would not only change the entire

nature of the suit but has also the stand taken in the earlier written

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40.wp.2066.22.doc

statement which is not permissible in law. I agree with the findings

returned by the learned Trial Court and it does not call for any

interference.

5.

Considering that the appeal has been pending since 2017, in

the interest of justice the learned Appellate Court is requested to

dispose of pending Appeal No.342 of 2017 within a period of three

months from today.

6.

With the above directions, Writ Petition is dismissed.

[ MILIND N. JADHAV, J. ]

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AJAY

TRAMBAK

UGALMUGALE

Digitally signed by

AJAY TRAMBAK

UGALMUGALE

Date: 2022.12.21

19:11:41 +0530