31-WP-12758-2016.docx IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 12758 OF 2016 Moin Babakhan Pathan. … Petitioner Vs. Masumbi Gani Pathan. … Respondents Mr. Shriram S. Kulkarni for the petitioner. Mr. Siddhesh P. i/b. Mr. Pravartak Pathak for the respondent no.2. CORAM : GAURI GODSE, J. DATE : 28th JANUARY 2026 ORDER : 1. This petition is filed by the original plaintiff to challenge the orders passed below Exhibits- 44, 63 and 53. 2. By the order passed below Exhibit-44, the guardian of the plaintiffs was directed to deposit the amount received by the guardian as per compromise between the plaintiffs and defendant no.4. By the order passed below Exhibit-63, the application filed by the guardian for extension of time to deposit the amount was rejected. 3. The petition was filed on behalf of the plaintiffs through their guardian as on the date of the filing of the petition, the 1/5 Swapnil 2026:BHC-AS:4637 31-WP-12758-2016.docx plaintiffs were minors. Pursuant to the order passed by this court the amount is already deposited by the guardian in the trial court. During the pendency of this petition the plaintiffs have attained majority. Hence, the impugned orders passed below Exhibits-44 and 63 have been worked out. Since, the plaintiffs have attained majority, the amount deposited by the guardian in the trial court can be permitted to be withdrawn by the plaintiffs. 4. By the order passed below Exhibit-53, an application on behalf of the plaintiffs seeking permission to amend the plaint has been rejected. 5. Learned counsel for the petitioners submits that the application for amendment was filed before the commencement of the trial. He submits that the some of the properties in which the plaintiffs would have a claim were not added at the time of filing of the suit. Hence, they applied for amending the plaint to add the property and also add the parties, whose names were shown in the property record. He submits that since the application was filed before the commencement of the trial, the application should have been allowed by the trial court. Learned counsel for the petitioner, 2/5 31-WP-12758-2016.docx therefore, submits that no prejudice would be caused to the defendants if the proposed amendment is allowed. 6. Learned counsel for the respondents submits that the plaintiffs were well aware about the contents sought to be added by way of amendment and no ground has been made out to seek amendment after the issues have been framed. 7. I have perused the papers of the petition. The learned trial court has refused to permit the amendment in view of the objection raised on behalf of the defendants that the partition between the defendant no.2 and his other brothers and sisters was not affected and thus, the properties sought to be added would not be liable for partition, in view of the Mohammedan Law applicable to the parties. The defendants has also raised an objection that after the death of the plaintiffs’ mother, their father had performed second marriage, out of which two daughters were born and thus, in view of suppression of those facts the plaintiffs would not be entitled to seek amendment. The trial court has therefore considered the proposed amendments on merits and refused to grant leave to carry out the amendment. Since, the trial has not commenced, no prejudice would be caused to the 3/5 31-WP-12758-2016.docx defendants if the amendment is allowed. On the merits of the proposed amendment the defendants would be entitled to file an additional written statement. Based on the rival pleadings, the trial court can always consider recasting of issues. The merits of the proposed amendment cannot be a ground to refuse the amendment. Hence, for the reasons recorded above, I see no ground to refuse the amendment as prayed in application below Exhibit-53. 8. The writ petition, is therefore, disposed of by passing following order :- i. The plaintiffs are permitted to withdraw the amount along with accrued interest if any, deposited by their guardian in the trial court pursuant to order dated 22nd November 2016 passed by this court in this petition. ii. The order dated 29th August 2016 passed by the Joint Civil Judge Jr. Division, Yeola below Exhibit-53 in Regular Civil Suit No. 116 of 2012 is quashed and set aside. iii. The application below Exhibit-53 is allowed. 4/5 31-WP-12758-2016.docx iv. The plaintiffs shall be permitted to carry out amendment in the plaint within four weeks from the date of production of authenticated copy of this order before the trial court. v. The defendants are at liberty to file additional written statement within six weeks from the date of the service of the amended plaint. vi. The trial court shall consider recasting of issues in view of the amended pleadings. vii. The writ petition is allowed in the aforesaid terms. [GAURI GODSE, J.] 5/5