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drp

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.9677 OF 2016

1.

Gopal Bhaurao Handgu

PETITIONERS

Age - 52 years, Occ - Agriculture

R/o Sumthana, Taluka - Shirur Anantpal,

District - Latur

2.

Govind Taterao Handgu

Age - 62 years, Occ - Agriculture

R/o Sumthana, Taluka - Shirur Anantpal

District - Latur

3.

Datta Hanmant Kanhere

Age - 10 years, Minor u/g of

Bhagabai @ Bhagirathi w/o Hanmant Kanhere

Age - 30 years, Occ - Agriculture

R/o Kambalga

Taluka - Shirur Anantpal,

District - Latur

4.

Shashikalabai w/o Gopal Handgu

Age - 45 years, Occ - Household

R/o Sumthna, Taluka - Shirur Anantpal

District - Latur

5.

Shantabai Babu Kanhere

Age - 70 years, Occ - Household

R/o Kambalga, Taluka - Shirur Anantpal

District - Latur

VERSUS

Indirabai Ashok Hunje

RESPONDENT

Age - 40 years, Occ - Housewife

R/o sumthana, Taluka - Shirur Anantpal

District - Latur

.......

Mr. Dhananjay Mane h/f Mr. Milind Patil, Advocate for petitioners

Mrs.M. D. Thube - Mhase, Advocate for the respondent

.......

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[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 11

^th JUNE, 2018

ORAL JUDGMENT :

1.

Rule. Rule made returnable forthwith and heard learned

advocates for the parties finally with consent quite at length.

2.

The petitioners purport to take exception to order dated 9^th

August, 2016 whereunder subject to payment of costs

amendment application at Exhibit-258 in regular civil suit No.

283 of 2011 filed by respondent - plaintiff has been allowed.

3.

Mr. Mane, learned advocate holding for Mr. Patil, appearing

on behalf of the petitioners - defendants contends that while the

suit had been instituted in 2011 and written statement had been

filed in 2013, referring to the relevant dates and documents, yet,

while one amendment application before application Exhibit-258

had been allowed, till the stage of reaching hearing of the suit,

no efforts had ever been taken to bring in amendment as

referred to in application at Exhibit-258. He submits that having

regard to proviso to Rule 17 of Order VI of the Civil Procedure

Code, in absence of due diligence, the application could not have

been allowed.

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4.

Whereas, on the other hand, Mrs. Thube - Mhase, learned

advocate appearing on behalf of the respondent - plaintiff

submits that specific reference had been made to the events and

documents in the plaint and only particulars were sought to be

incorporated under the amendment which has been allowed.

Impugned order does not cause any particular prejudice to the

petitioners and this has been taken into account while passing

the order impugned in the present writ petition. She submits

that the law is settled that amendments, which are necessary for

the purpose of determining real question in controversy, need to

be allowed and technical objections in the circumstances, may

have to be overruled. She submits that paragraphs No. 4 and 10

and other paragraphs of the plaint give sufficient indication of

the basic facts being pleaded and they are beingparticularly

explained by amendment and, as such, the objection being

raised to the order passed on Exhibit-258 is unsustainable.

5.

Perusal of the reasons given by learned judge while

passing the impugned order, shows that he has made reference

to several citations and has observed that the plaintiff has

already pleaded about the documents in paragraph No. 4 of the

plaint and she is intending to plead the fact that she came to

know about the alleged adopting deed and relinquishment deed

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on 15^th August, 2011 and that the law largely bears that the

courts should be liberal in allowing amendment and in the

present case proposed amendment is explanatory in nature.

6.

Having regard to aforesaid observations and further taking

into account that discretion has been exer