Bombay High Court
Amartya S/O Surendra Deshmukh, ... vs Sau. Sheela W/O Rameshrao ... on 20 April, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 2668 OF 2015
PETITIONERS : 1] Amartya S/o Surendra Deshmukh,
Aged about 13 years, Occu. Student,
Being Minor through his Grandfather
Haribhau Krushnarao Deshmukh,
Aged about 73 years, Occu. Agriculture,
R/o Takarkheda Sambhu, Tal. Bhatkuli,
District Amravati.
ig 2] Haribhau Krushnarao Deshmukh,
Aged about 73 years, Occu. Agriculture,
R/o Takarkheda Sambhu, Tal. Bhatkuli,
District Amravati.
- VERSUS -
RESPONDENTS : 1] Sau. Sheela W/o Rameshrao Deshmukh,
Aged about 55 years, Occu. Household work
2] Ku. Punam D/o Ramesh Deshmukh,
Aged about 22 years, Occu. Student.
3] Gopal S/o Ramesh Deshmukh,
Aged about 20 years, Occu. Student,
All above resident of Takarkheda Sambhu,
Tah. Bhatkuli, Dist. Amravati.
4] Sau. Jyoti W/o Uttamrao Jagtap,
Aged Major, Occu. Housewife,
R/o Namuna Galli No.1, Behind Pawar
Photo Studio, Amravati, Tal. & Dist. Amravati.
5] Sau. Shital W/o Rajesh Ulhe,
Aged about 29 Years, Occu. Housewife,
R/o Vishnu Nagar, Near Nawsari Bus Stop,
Amravati, Tal. And Dist. Amravati.
6] Ramesh S/o Krushnarao Deshmukh,
Aged about 65 years, Occu. Agriculture,
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R/o Takarkheda Sambhu, Tal. Bhatkuli,
District Amravati.
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Mr. A. M. Sudame, Advocate for the petitioners
Mr. Anup Dhore, Advocate for the respondents.
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CORAM : PRASANNA B. VARALE, J.
DATE : APRIL 20, 2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. The issue involved in
this petition being limited one, the petition is heard finally with the consent of
the learned counsel for the parties.
2] By the present petition, the petitioners challenge the order
passed by the Appellate Court i.e. the learned District Judge-3, Amravati,
dated 07.04.2015 in Regular Civil Appeal No. 26/2015, thereby allowing the
application seeking amendment to the plaint.
3] The petitioners and respondent no.6 herein are the original
defendants whereas the respondent nos.1 to 5 are the original plaintiffs. A
Special Civil Suit No. 608/2012 was filed at the instance of respondent nos.1
to 5 herein against the petitioners and respondent no.6 for declaration and
permanent injunction. The said civil suit was dismissed. An appeal was
preferred by the original plaintiffs bearing Regular Civil Appeal No. 26/2015
on 25.02.2015. In the said appeal, an application under Order VI Rule 17 of
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the Code of Civil Procedure for amendment to the plaint was filed by the
appellants/original plaintiffs. It was the contention of the appellants/original
plaintiffs that the suit property is the joint hindu ancestral coparcenary
property. The application was opposed by the petitioners/original defendants.
The Appellate Court, on the ground that there was a pleading about the
property being ancestral one and in view of certain documents, which recently
came in possession of the applicants, allowed the application for amendment
to the plaint.
4] The learned counsel for the petitioners vehemently submitted
that the order impugned in the present petition passed by the Appellate Court
is unsustainable on more than one grounds. He submitted that while
contesting the suit, the respondents/original plaintiffs had raised the peculiar
ground of the property being self-acquired property of the father of
respondent no.2 During pendency of the suit, no attempt was made to
change the stance and stand of the property being ancestral and joint
property. Even at the stage of filing of an appeal, no such ground was raised
and with a new theory the application was moved seeking amendment to the
plaint. The learned counsel for the petitioners further submitted that the
application was silent on the aspect of finding any new material or record and
is also silent on the aspect that in spite of an attempt and due diligence shown
by the applicants/appellants, the applicants/respondents were unable to raise
this ground earlier. The learned counsel further submitted that when the
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application was silent on all these material aspects, the Appellate Court on an
erroneous assumption that the application satisfies the requirements of Order
VI Rule 17 of the CPC, allowed the application.
5] The learned counsel for the respondents made an attempt to
support the order passed by the Appellate Court, impugned in the petition. It
was the submission of the learned counsel that the ground was raised before
the trial Court in regard to the property being ancestral one.
6] On a perusal of the material, it reveals that there is merit in the
submission of the learned counsel for the petitioners. The learned counsel for
the petitioners invited my attention to the legal notice issued to the petitioners
by the respondent nos.1 to 5 herein. It reveals from the perusal of the
judgment and order passed by the trial Court that while dismissing the suit,
the issue nos.1, 2 and 4 were treated as interlinked and they were decided
together. A stand was taken by the petitioner/defendant no.1 and the same
was referred to by the Court that the property was a self-acquired property of
Krushnarao and the property was not coparcenary property. There is also
merit in the submission of the learned counsel for the petitioners that the
application presented by the respondents, seeking amendment of the plaint, is
silent on the aspect of the material on which the plaintiffs/applicants wanted
to place reliance as the material was unearthed subsequently, in spite of due
diligence of the parties. There is also merit in the submission of the learned
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counsel for the petitioners that the Appellate Court erred in assuming and
presuming that there was reference to the record in the application in support
of the submission of the applicants. On the contrary, the application is silent
on the aspect of any such material or record, which was initially not available
with the applicants and subsequently, the applicants got knowledge of the
said record and knowledge of the record prompted the applicants to produce
the application before the Court. Thus, the Appellate Court erred in allowing
the application without there being any necessary material before it to support
the application, seeking amendment of the plaint. The order passed by the
learned District Judge-3, Amravati is, therefore unsustainable and the petition
deserves to be allowed.
7] At this stage, the learned counsel for the respondents submitted
that the respondents be permitted to approach the learned District Judge by
presenting a fresh application as the important property rights are involved in
the matter and the respondents may not be deprived of raising the material
grounds on technicalities.
8] In the result, the writ petition is allowed.
The order passed by the learned District Judge-3, Amravati,
dated 07.04.2015 in Regular Civil Appeal No. 26/2015 impugned in this
petition is quashed and set aside.
The respondents/appellants may file fresh application for
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amendment, if they are so advised, before the learned District Judge,
Amravati. Needless to state that the learned District Judge, before whom the
appeal is pending or before whom the application would be moved, shall
decide the same on its own merits and by giving equal opportunity of hearing
to the petitioners and contesting respondent/s.
Rule is made absolute in the aforesaid terms. No costs.
Diwale
JUDGE
