Smt. Zareena Praveen vs Lrs. Mustak Ahmed & Ors on 26 October, 2009

                                      S.B.CIVIL WRIT PETITION NO.10109/2009
                                     Smt. Zareena Praveen vs. Lrs of Mustak Ahmed
                                                   DATE OF ORDER : 26/10/2009

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            S.B.CIVIL WRIT PETITION NO.10109/2009
          (Smt. Zareena Praveen vs. LRs of Mustak Ahmed)

                   DATE OF ORDER : 26/10/2009

            HON'BLE DR.JUSTICE VINEET KOTHARI


Mr.C.P.Soni, for the petitioner.



1.    This petition is directed against the order dated 7/9/2009,

whereby, the learned trial court has rejected the application under

Order 6 Rule 17 CPC of the plaintiff-petitioner seeking amendment in

the plaint in the present partition suit filed in 1982. The plaintiff

claimed that since one of the shareholders Mustak Ahmed has left for

Pakistan, therefore, he was not entitled to any share in the property

and, therefore, to bring on record this fact, amendment in the plaint

was required to be made.

2.    Learned trial court has referred to order dated 31/8/2006, which

was passed on an application under Order 1 Rule 10 CPC filed by

plaintiff seeking deletion of the same Mustak Ahmed from the array

of defendants and while rejecting the said application, the trial court

observed that entitlement of share of said Mustak Ahmed on the basis

of the fact of leaving for Pakistan would depend on the evidence on
                                        S.B.CIVIL WRIT PETITION NO.10109/2009
                                      Smt. Zareena Praveen vs. Lrs of Mustak Ahmed
                                                    DATE OF ORDER : 26/10/2009

                                   2/2

record and it is a matter of argument. The learned trial court in that

order has also noticed that said Mustak Ahmed was not a citizen of

Pakistan but citizen of India and infact died in Makrana,within the

State of Rajasthan.

3.    Be that as it may, since it is a mixed question of fact and law

and suit is at the stage of final arguments, if the learned trial court in

its discretion has found fit not to permit any amendment in the

pleadings in this regard, this Court is not inclined to interfere in the

said order causing further delay in the conclusion of trial.

4.    Consequently, this writ petition being devoid of merit is

dismissed. Copy of this order be sent to opposite side and trial court.



                                            (DR.VINEET KOTHARI), J.

item no.17
baweja/-