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Laxman Vithoba Bhorsat and ors. Vs. Rajaram Vithoba Bhorsat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberW.P. No. 3047 of 2004
Judge
Reported in2005(6)BomCR418; 2005(3)MhLj969
AppellantLaxman Vithoba Bhorsat and ors.
RespondentRajaram Vithoba Bhorsat and ors.
Appellant AdvocateV.V. Pai, Adv.
Respondent AdvocateP.S. Dani, Adv. for Respondents No. 1 and ;V.D. Bhavsar, Adv. for Respondent No. 2
Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power..........an error in terming it as a counter-claim. it really is an application for amendment in the written statement, so that other properties which according to the defendant are also joint family properties can be subjected to partition. in a suit filed for a decree for partition the defendant who has share in the joint properties is also in the position of the plaintiff, therefore a defendant can claim in his written statement that apart from the properties which are mentioned in the plaint there are other properties which are joint and deserve to be partitioned. 2. i do not find any patent illegality in the order. petition is rejected.
Judgment:

D.K. Deshmukh, J.

1. By this petition the petitioner challenges the order passed by the trial Court allowing the amendment in the written statement. Suit admittedly is a suit for partition. Amendment is sought by the defendant in the written statement. Amendment in the written statement, which results in including other properties than the one in relation to which partition is sought by the plaintiff does not really amount to counter-claim. Therefore, the trial Court and the defendant have committed an error in terming it as a counter-claim. It really is an application for amendment in the written statement, so that other properties which according to the defendant are also joint family properties can be subjected to partition. In a suit filed for a decree for partition the defendant who has share in the joint properties is also in the position of the plaintiff, therefore a defendant can claim in his written statement that apart from the properties which are mentioned in the plaint there are other properties which are joint and deserve to be partitioned.

2. I do not find any patent illegality in the order. Petition is rejected.


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