The Bombay High Court allowed the petition seeking quashing of the order of the Trial Court dated 07.09.2020, in so far as it rejected the application for the addition of parties.
Brief Facts:
Both the petitions challenge the order dated 7.9.2020 whereby the application under Order 6 Rule 17 read with Order 1 Rule 10 of CPC was partly allowed by the learned Trial Court by permitting the amendment to be carried out but rejecting the addition of parties.
Contentions of the Petitioner (in W.P. 2410/2021):
The Learned Counsel for the Petitioner argued that the learned Court below had erred in rejecting the plea under Order 1 Rule 10 of CPC, as it merely sought to implead all the trustees of Shikhasn Prassarak Mandal, Chikhali in the suit. He submitted that though in the original suit, one of the trustees viz. Respondent No.1 herein was made a party, however on account of his demise, the other trustees were necessary to be added.
He also defended the order granting amendment, contending that the amendment does not change the nature of the suit, as the relief sought to be claimed of the amendment of demolition of the construction on the aforesaid land is inbuilt in the original prayer clause (1) in the plaint.
Contentions of the Respondent:
The learned Counsel of the Respondent argued that since the petitioner was aware of the construction made since 2003, the Trial Court could not have allowed the application permitting amendment seeking the relief of demolition of the structure made on the aforesaid land. He also supports the impugned order rejecting the application under Order 1 Rule 10 of CPC.
Observations of the Court
The Court observed that since it is claimed that the land is encroached on by the trust, the trust was a necessary party. The suit was filed against only one of the trustees and therefore, the application for addition of the other trustees and the trust would be necessarily required to be allowed.
The Court also rejected the argument of the respondent that the amendment is permissible on account of lack of due diligence, as the application in the instant case was after the framing of issues, but before the affidavit in lieu of evidence was filed. This is because the relief claimed is already inbuilt into prayer clause (1) of the original plaint.
The decision of the Court:
The Bombay High Court, allowing the petition, quashed and set aside the impugned order dated 7.9.2020 in so far as it rejected the application under Order 1 Rule 10 of CPC. Hence, the Court allowed addition of parties to the suit.
Case Title: Digambar Madhavrao Deshmane and ors. vs Govindrao Abuji Shete thr L.Rs
AND Govindrao Abuji Shete vs Digambar Madhavrao Deshmane and ors.
Coram: Hon’ble Justice Avinash G. Gharote
Case no.: WRIT PETITION NO. 2410 OF 2021 AND WRIT PETITION NO. 1253 OF 2021
Advocate for the Petitioner in WP/2410: Mr. R.G.Kavimandan
Advocate for the Respondent in WP/2410: Mr. S.N.Bhattad
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