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wp364.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.364 of 2016
1. Shri Shatrugna s/o Shankar Munde,
Aged about 69 years,
Occupation - Business,
R/o Siddartha Wadi, Akola,
Tq. and Distt. Akola.
2. Shri Deepak s/o Bhimrao Khose,
Aged about 45 years,
Occupation - Business,
R/o Hariharpeth,
Akola,
Tq. and Distt. Akola. ... Petitioners/
Ori. Plaintiffs on RA
Versus
1. Zonal Officer (Western Zone),
Akola Municipal Corporation.
2. Akola Municipal Corporation,
Akola, through its Commissioner,
Akola. ... Respondents/
Ori. Defendants on RA
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wp364.16.odt
Shri S.A. Mohta, Advocate for Petitioners.
Shri Sameer Sohoni, Advocate for Respondent No.2.
Coram : R.K. Deshpande, J.
th Dated : 4 October, 2016 Oral Judgment :
1. Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.
2. The Trial Court, by the impugned order dated 13-1-2016 passed below Exhibit 16 in Regular Civil Suit No.420 of 2015, has rejected the application for amendment of plaint. It is not the finding recorded by the Trial Court that the amendment is not necessary for deciding the real controversy involved in the matter. After going through the averments made in the plaint as well as in the application for amendment of plaint, it is not understood as to how the amendment would change the nature of the suit filed.
3. By way of amendment, the plaintiffs are challenging the ::: Uploaded on - 06/10/2016 ::: Downloaded on - 07/10/2016 00:48:06 ::: 3 wp364.16.odt notices of demolition issued by the Municipal Corporation. The first prayer in the plaint is for injunction restraining the defendants from causing damage to the suit property. The another prayer in the plaint is to restrain the defendants from acting upon the notices dated 30-11-2015, 1-12-2015 and 3-12-2015. After going through the averments in plaint and the application for amendment, I find that the amendment proposed is necessary for deciding the real controversy involved in the matter. The Trial Court ought to have allowed the application for amendment, which does not affect in any manner the objections raised by the defendants regarding bar of jurisdiction of the Civil court to entertain, try and decide the suit, as contemplated by Section 433A of the Maharashtra Municipal Corporations Act, 1949.
4. In the result, the petition is allowed. The order dated 13-1-2016 passed by the Trial Court below Exhibit 16 in Regular Civil Suit No.420 of 2015, is hereby quashed and set aside. The application for amendment of plaint is allowed.
Necessary amendment be carried out within a period of two ::: Uploaded on - 06/10/2016 ::: Downloaded on - 07/10/2016 00:48:06 ::: 4 wp364.16.odt weeks from the date of first appearance of the parties before the Trial Court. It is informed that the matter is already fixed on 6-10-2016. It is made clear that this Court has not gone into the question of grant or rejection of temporary injunction, which is the subject-matter of separate application, which is pending before the lower Appellate Court.
5. Rule is made absolute in above terms. No order as to costs.
Judge.
Lanjewar ::: Uploaded on - 06/10/2016 ::: Downloaded on - 07/10/2016 00:48:06 ::: 5 wp364.16.odt CERTIFICATE "I certify that this Judgment uploaded is a true and correct copy of original signed Judgment."
Uploaded by : P.D. Lanjewar, PS Uploaded on : 6-10-2016 ::: Uploaded on - 06/10/2016 ::: Downloaded on - 07/10/2016 00:48:06 :::