Dattaram Dharma Mayekar & Anr vs Abhimanyu Dharma Mayekar & Ors
2011 Latest Caselaw 174 Bom

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                       IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                            
                                  CIVIL APPELLATE JURISDICTION
                                  WRIT PETITION NO.3762 of 2011




                                                                    
          Dattaram Dharma Mayekar & Anr.                                       ..  Petitioners
                Versus




                                                                   
          Abhimanyu Dharma Mayekar & Ors.                                      ..  Respondents

          Mr. S. M. Railkar for the Petitioners
          Ms Sukruta Chimalkar i/b Mr. S.B.Prabhawalakr for the Respondent Nos.1 
          to 8  




                                                      
                                           CORAM :   R.M.SAVANT, J.

ORAL JUDGMENT :

                                     ig           DATE     :   7th DECEMBER,  2011


          1        Rule. With the consent of the parties made returnable forthwith 
                                   
          and heard.

          2      The above Petition takes exception to the Order dated 27-1-2011 
             

passed by the Learned Civil Judge, Senior Division, Ratnagiri, by which

Order the Application Exhibit 151 in Regular Civil Suit no.18 of 2005 for

amendment of the plaint in terms of the proposed amendment contained

therein filed by the Plaintiff came to be allowed subject to the payment of

costs of Rs.500/-.

3 Shorn of unnecessary details the few facts can be stated thus

The Respondent No.1 herein is the original Plaintiff who has filed

Regular Civil Suit No.18 of 2005 for partition and possession of the

properties mentioned in Schedule-A, Schedule-B and Schedule-C of the

said Suit which according to him are the ancestral properties.

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    4      In so far as, the Schedule A is concerned, the said schedule consists 

of as many as 36 items and against each item a survey number has been

mentioned its area and its assessment. In so far as, the Schedule B is

concerned, there are as many as 7 items containing the same information

as Schedule A. In so far as, the Schedule C is concerned, the said schedule

consists of a house situated in Survey No.165, Hissa No.2 in respect of

which it is the case of the Plaintiff that he has spent an amount of Rs.

60,000/-

In the plaint in paragraph 9 the Plaintiff has averred that in respect

of the lands mentioned at item Nos.8, 9, 10, 11, 14, 26, 27, 28, 33 and 36,

he has spent money from his own income and has planted mango trees in

the said land and, therefore, on partition the said lands should be allotted

to his share.

6 In so far as, Survey No.164 part 12 is concerned, wherein the house

is situated he has expended an amount of Rs.60,000/- towards the house

and for construction of well. The Plaintiff filed an Application for

amendment of the plaint sometime in January 2009 which Application

was numbered as Exhibit 128 and the amendment sought was to the same

extent as is sought by the present application Exhibit 151. Though the

Learned Counsel for the Petitioners i.e. the Defendants states that the

scope has now been extended much more than what was sought by

Exhibit 128.

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    7      Be that as it may, the said amendment application Exhibit 128 was 

allowed by the Trial Court by Order dated 25-2-2009 which resulted in

the present Petitioners filing a Writ Petition in this Court being Writ

Petition No.3871 of 2009 which came to be disposed of by this Court by

Order dated 15-3-2010, by which Order, the Plaintiff was permitted to

withdraw the Application Exhibit 128 with liberty to file a fresh

application for amendment of the plaint. It is in accord with the said

liberty granted that the instant Application Exhibit 151 has been filed. In

the context of the mandate of Order 6 Rule 17 of the Civil Procedure

Code. The Plaintiff has averred that the amendment sought by the said

Application Exhibit 151 was necessitated in view of the information which

he got after he had engaged some retired Revenue Officers to carry out

survey of the lands in question. According to the Plaintiff, the said

information was not available with him earlier and, therefore, the some

wrong survey numbers were mentioned in Schedule A and by the present

Application for amendment Exhibit 151 some of the survey numbers were

sought to be deleted and some new survey numbers sought to be

incorporated. This was in respect of the lands which the Plaintiff claimed

should be allotted to him in the event partition is ordered, as he is the

person who had expended for cultivation of the land as well as for the

house and the well in question. The said Application was opposed by the

Defendant i.e. the Petitioners herein by filing their reply. By the impugned

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Order the said application has been allowed by the Trail Court. The Trial

Court has found that the reasons mentioned by the Plaintiff for the delay

in filing the Application are worthy of acceptance. The Trial Court was of

the view that the amendment if allowed would ultimately aid in resolving

the dispute between the parties.

    8      Heard the learned Counsel for the parties.

    9      The   Learned   Counsel   for   the   Petitioner   would   contend   that   the 




                                                

reasons mentioned by the Plaintiff for filing Exhibit 151 dated 27-1-2011

in the teeth of the fact that the said information was available with him in

the year 2008 could not have been accepted by the Trial Court as the

Plaintiff has not set out any justifiable reason for the delay. The Learned

Counsel would contend that by deleting some survey numbers and by

incorporating some other new survey numbers in Schedule A. The scope

of the amendment application goes much beyond Exhibit 128 as

originally filed in the said suit. The Learned Counsel would contend that

the said application for amendment should not have been entertained

after affidavit of evidence was filed by the Plaintiff.

Per contra, it is submitted by the Learned Counsel appearing for the

Respondents herein that the reasons why there was delay in filing the

application Exhibit 151 have been stated in the application itself. The

Learned Counsel would contend that it was necessary to mention to

correct survey numbers as the said information was not available at the

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time when the suit was filed. The Learned Counsel would contend that the

incorporation of the said correct survey numbers would facilitate the

complete adjudication of the disputes between the parties.

10 Having heard the learned Counsel for the parties and having

bestowed my anxious consideration to the rival contention of the parties.

11 In the instant case, it is required to be borne in mind that the

Plaintiff has filed the suit for partition and possession of the ancestral

properties. The description of the properties are mentioned in schedule A,

B and C of the plaint. The Plaintiff has specifically averred that in the

event of partition the lands which he had cultivated out of his own income

should be allotted to his share as also the suit house towards which, it is

the case of the Plaintiff that he has expended an amount of Rs.60,000/- in

the up keep of the house as well as the construction of the well. Hence,

ultimately what plaintiff is seeking is that in the event of partition, the

lands which he has cultivated should come to his share. It is required to

be noted that in paragraph 9 of the plaint he has mentioned such

properties which according to him should come to his share as he has

cultivated them. If there was wrong mention of the survey numbers which

he has cultivated, the Plaintiff was entitled to correct the said survey

numbers. It is required to be noted that the reasons why the amendment

application was required to be moved have been stated by the Plaintiff in

the said application Exhibit 151. It is stated by him that the said

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amendment application was moved after the land was got surveyed by

him through certain retired Revenue officers who have given him the

details of the exact survey numbers. It is, therefore, on such information

which he has procured after filing of the suit and after the suit has

progressed that he has sought to incorporate by way of the amendment

application.

11 In my view, considering the nature of the amendments that have

been allowed, they would cause no prejudice to the Defendants as

ultimately if the properties are to be partitioned then what the Plaintiff is

seeking that that the lands which have been mentioned in paragraph 9 as

amended should be allotted to his share as well as the property in survey

No.165/12 in respect of which property according to the Plaintiff he has

expended Rs.60,000/-. It is trite that an amendment application can be

allowed if it results in bringing the facts before the Court which would

facilitate the dispute between the parties being completely adjudicated.

12 In my view, therefore, no fault can be found with the discretion

exercised by the Trial Court, in allowing the said amendment application.

In that view of the matter, no case for interdiction in the Writ jurisdiction

of this Court under Article 227 of the Constitution of India, is made out.

Writ Petition is accordingly dismissed.

    13     Rule is discharged, with no order as to costs. 

                                                             (R.M.SAVANT, J.)