14-J-WP-5948-16.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.5948 OF 2016
Prakash s/o Sheshmal Kothari
aged about 62 years,
Occupation - Cultivation and business,
resident of Samadhi Ward,
Chandrapur,
Tq. and Dist. Chandrapur. .. PETITIONER
.. VERSUS ..
Ramlal s/o Ganesh Singh
aged about 55 years,
Occ. Business, Resident of Tadali,
Tq. and Dist. Chandrapur .. RESPONDENT
..........
Shri M. P. Khajanchi, Advocate for petitioner.
Ms Sneha S. Dhote, Advocate for respondent.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : JULY 06, 2017.
ORAL JUDGMENT Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel for the parties. ::: Uploaded on - 11/07/2017 ::: Downloaded on - 13/07/2017 00:12:23 ::: 14-J-WP-5948-16.odt 2
2. The challenge in this petition is to the order dated 29/06/2015 passed by learned Jt. Civil Judge (Junior Division), Chandrapur in Regular Civil Suit No.69 of 2011 thereby rejecting an application for amendment (Exhibit-33) preferred by the petitioner.
3. Facts giving rise to the petition may be stated in brief as follows :
Petitioner is the plaintiff in Regular Civil Suit No.69/2011 filed against the respondent/defendant. The suit is for mandatory and perpetual injunction, possession and damages. It was filed on 06/06/2011. After issues came to be framed and the suit was listed for evidence, plaintiff moved an application for amendment under Order VI Rule 17 of the Code of Civil Procedure on 16/12/2014. By the impugned order application for amendment came to be rejected. Hence this petition.
4. Heard Shri M. P. Khajanchi, learned counsel for petitioner and Ms Dhote, learned counsel for respondent. With the assistance of learned counsel for the parties, this Court has gone through the pleadings in plaint, written ::: Uploaded on - 11/07/2017 ::: Downloaded on - 13/07/2017 00:12:23 ::: 14-J-WP-5948-16.odt 3 statement and an application for proposed amendment. According to petitioner on 16/06/2014, he got the property measured by retired DILR. On spot inspection, map was prepared and based on map plaintiff has to amend the pleadings in the plaint.
5. Respondent/defendant objected the application on two grounds (i) delay in filing application not explained and
(ii) application was filed after commencement of trial.
6. It is not in dispute that issues came to be framed and affidavit-in-lieu of evidence has been filed by plaintiff before an application for amendment was made. It is also not in dispute that trial had commenced before the amendment was proposed.
7. So far as delay is concerned, according to plaintiff he got the land measured in June 2014 and after the map was prepared, he filed an application for amendment along with the map. Submission is that amendment relates to subsequent development and there was no delay as such. ::: Uploaded on - 11/07/2017 ::: Downloaded on - 13/07/2017 00:12:23 ::: 14-J-WP-5948-16.odt 4
8. Learned counsel for respondent vehemently opposed the submission made by learned counsel for petitioner. He points out that after framing of issues and filing of affidavit-in-lieu of evidence, provisions of Order VI Rule 17 of the CPC cannot be invoked and trial Court has rightly rejected the application.
9. The undisputed facts would reveal that suit is for permanent and mandatory injunction, possession and damages. No where plaintiff says that it is for removal of encroachment. According to plaintiff, he got the land measured on 16/6/2014 and on measurement, it was found that the disputed land involved is 15' x 20' and not 15' x 10' as shown in the prayer clause of plaint. Proposed amendment is based on the map drawn by on spot inspection.
10. Considering the nature of controversy between the parties and since it relates to subsequent development, this Court is of the view that proposed amendment is essential to decide the controversy between the parties and there is no embargo even under order VI Rule 17 of CPC to allow ::: Uploaded on - 11/07/2017 ::: Downloaded on - 13/07/2017 00:12:23 ::: 14-J-WP-5948-16.odt 5 such an amendment.
11. Another submission of the respondent that suit was filed in the year 2011 and amendment application was moved in 2014 and so there was an inordinate delay does not hold good as measurement was in June 2014 and not in the year 2011.
12. In the above background this Court finds that trial Court committed an error in rejecting the application. Interference is thus warranted in writ jurisdiction. Hence the following order :
(i) Writ petition is allowed. (ii) The impugned order dated 29/06/2015 passed by
learned Jt. Civil Judge (J.D.) Chandrapur in R.C.S. No.69/2011 is quashed and set aside.
(iii) Application (Exhibit-33) is allowed. Plaintiff to carry out amendment within two weeks.
(iv) Defendant is at liberty to make consequential amendment, if any.
(iv) Trial Court to proceed with the suit in accordance ::: Uploaded on - 11/07/2017 ::: Downloaded on - 13/07/2017 00:12:23 ::: 14-J-WP-5948-16.odt 6 with the law.
(v) Rule is made absolute in above terms. No costs.
(Kum. Indira Jain, J.) Asmita, PA ::: Uploaded on - 11/07/2017 ::: Downloaded on - 13/07/2017 00:12:23 :::