MOIN BABAKHAN PATHANversusMASUMBI GANI PATHAN

2026:BHC-AS:4637

                                                                  31-WP-12758-2016.docx


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CIVIL APPELLATE JURISDICTION
     Swapnil                 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


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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guardian in the trial court can be permitted to be withdrawn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,


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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


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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.


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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.]




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