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2015 DIGILAW 58 (BOM)

Surendra Ramdas Mahure v. Anita Surendra Mahure

2015-01-08

S.B.SHUKRE

body2015
JUDGMENT : S.B. Shukre, J. 1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the parties. This Writ Petition is directed against the order passed by the Judicial Magistrate, First Class, Court No. 6, Akola on 14-10-2014, thereby rejecting the amendment application of the petitioner vide Exhibit-53. It is the contention of the petitioner that when he had filed his reply to the application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 by the respondent, in which the amendment was also claimed, the petitioner was not aware of the fact that the respondent was getting some income from her share in various agricultural lands. The petitioner also submitted that he got information in that regard on 09-05-2014 and, therefore, he immediately moved an application for amendment by incorporating his averments regarding earning of income by the respondent in his reply. The application was opposed by the respondent only on the grounds that there was no provision under the Protection of Women from Domestic Violence Act for granting permission to amend the reply filed by the petitioner and that the amendment application had been moved only with a view to delay the proceedings at the time when the matter was fixed for recording of evidence. 2. Upon consideration of the stand taken by both the sides and hearing the rival parties, the learned Magistrate, by an order passed on 14-10-2014 rejected the application. Being aggrieved by the same, the petitioner is before this Court in the present Writ Petition. 3. 2. Upon consideration of the stand taken by both the sides and hearing the rival parties, the learned Magistrate, by an order passed on 14-10-2014 rejected the application. Being aggrieved by the same, the petitioner is before this Court in the present Writ Petition. 3. It is the contention of the learned Counsel for the petitioner in the first place that the respondent was having her share in six landed properties and that earning of income therefrom was not at all denied by the respondent and in the second place that there were also documents placed on record, which were in the nature of 7/12 extracts and the admissions of the respondent which appeared in written statement filed in Regular Civil Suit No. 29 of 2009 clearly indicating that the respondent was the owner of some landed properties thereby giving rise to a possibility of earning of some income by her and even then, the learned Magistrate, by entering into the merits of the matter, found that the entries in 7/12 extracts in the name of respondent came to be deleted by way of mutation, which is not permissible in law while considering the prayer for amendment of the reply. 4. The learned Counsel for the respondent, strongly opposing the petition submits that even though there are no specific denials in the reply filed to the amendment application vide Exhibit-53 to the submissions of the petitioner that the respondent was having her landed properties and was earning some income, the amendment application was rightly rejected by the learned Magistrate because it was filed with a view to delay the proceedings. He also submits that the respondent always had an opportunity to prove his defence that the respondent being the owner of some landed properties was capable of earning independently by giving appropriate suggestions in the cross examination and by placing documents in support thereof. Therefore, no prejudice has been caused to the petitioner by rejecting his amendment application so submits the learned Counsel. 5. Upon perusal of amendment application, reply filed thereto and the copies of the documents produced before the Court of Judicial Magistrate, which are forming the part of present petition, I find substance in the argument of the learned Counsel for the petitioner and no merit in the argument of the learned Counsel for the respondent. 6. 5. Upon perusal of amendment application, reply filed thereto and the copies of the documents produced before the Court of Judicial Magistrate, which are forming the part of present petition, I find substance in the argument of the learned Counsel for the petitioner and no merit in the argument of the learned Counsel for the respondent. 6. In the reply, the respondent has not specifically denied the averments of the petitioner that she is having some share in the landed properties. It has also not been denied by the respondent that because of her having shares in the landed properties there is a possibility of earning of some income therefrom by her. Even the documents placed on record which documents, as stated by learned Counsel for the petitioner, are the true copies of the documents filed on record before the lower Court, support the contentions of the petitioner. These documents do not at all show at this stage, that the name of the respondent has been deleted by way of mutation sanctioned by the competent authority under the provisions of the Land Revenue Code. With such facts there being present on record, it is quite surprising to note that the learned Magistrate has recorded a finding that the name of the respondent has been deleted from the 7/12 extracts pertaining to some of the agricultural lands. This finding is prima facie against the material present on record and also amounts to entering into the merits of the case, which is not permissible at the stage of consideration of an amendment application. Besides, there has been no denial on the part of the respondent about the said contentions of the petitioner. Therefore, the order impugned herein is perverse and arbitrary and as such cannot be sustained in law. 7. As regards the contention that allowing of amendment application would cause delay to the proceedings, I must say that there is no substance in the same, as by arbitrary rejection of the amendment application, the matter has been already unnecessarily delayed. If the respondent had given her no objection to the application, this situation would not have arisen. That apart, what is illegal and arbitrary in law cannot be allowed to be continued on the excuse of delay in proceedings. 8. In this view of the matter, I am inclined to allow the petition. If the respondent had given her no objection to the application, this situation would not have arisen. That apart, what is illegal and arbitrary in law cannot be allowed to be continued on the excuse of delay in proceedings. 8. In this view of the matter, I am inclined to allow the petition. The impugned order dated 14-10-2014 passed below Exhibit-53 is hereby quashed and set aside. The application at Exhibit-53 is allowed. Amendment be carried out within a period of two weeks from the date of the order. The parties shall appear before the Court of Judicial Magistrate, Court No. 6, Akola on the next date that may be given by that Court. Rule is made absolute in these terms. Writ Petition is disposed of accordingly.