VISHWANATH TULSHIRAM DHANDE Vs. MURRLIDHAR RAMBHAU DHANDE

JUDGEMENT

(1.) HEARD Mr. S. P. Chapalgaonkar, learned Counsel for the petitioner and Mr. Dhananjay Deshpande, learned Counsel for the respondents Nos. 1 and 2.

(2.) THE revision is preferred against the order of rejection of the application for amendment. The impugned order is in the nature of interlocutory order and therefore, the learned Counsel for the respondents Nos. 1 and 2 contended that the revision is not maintainable in view of the decision of this court in a case of (Rajabhauv. Dinkar) 2003 (1) Bom. C. R. (N. B.)40 : 2002 (3)Mh. L. J. 921, and (Nagoraov. Narayan), 2003 (2) Bom. C. R. (N. B.)148 : 2002 (4)Mh. L. J. 615, in which it is held that a revision against interlocutory order is not maintainable.

(3.) THE learned Counsel for the petitioner relying on a case of (Badrinarnyan bansilal Somaniv. Vinodkumar K. Shah), 2003 (3) Bom. C. R. 231 : 2003 (2)Mh. L. J. 120, contended that the revision has not become infructuous. In the said case it is held that amendment of written statement which was filed prior to 1-7-2002 is not affected by insertion of proviso to Order 6, Rule 17 of Civil procedure Code. In this case, it is held that rejection of amendment to written statement cannot be held to be the proper exercise of the jurisdiction of the court below and the same warrants interference in the revisional jurisdiction, as -the impugned order if allowed to remain on record would result in failure of justice. It is to be noted that the said case was decided on 13th august, 2002. In this case, the question as regards maintainability was not raised and decided. The said issue was decided in the above referred two cases relied upon by the learned Counsel for the respondents Nos. 1 and 2. Therefore, the case relied upon by the learned Counsel for the petitioner is of no avail to him.