Bombay High Court
Smt. Pushpabai Maroti ... vs Sanjay Rameshwar Bhandari And ... on 21 April, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.5495 OF 2014
1. Smt. Pushpabai Maroti Tagadpalliwar,
aged 65 Yrs., Occu. Business/Household,
R/o Udasi Ward, Pusad,
Tah. Pusad, Distt. Yavatmal.
2. Shri Sharad Maroti Tagadpalliwar,
aged about 50 Yrs., Occu. Business,
Prabhu Agency, Ambedkar Chowk,
Pusad, R/o Moti Nagar, Pusad,
3.
Tah. Pusad, Distt. Yavatmal.
Pradeep Maroti Tagadpalliwar,
aged about 35 Yrs., Occu. Business,
Prabhu Agency, Ambedkar Chowk,
Pusad, R/o Moti Nagar, Pusad,
Tah. Pusad, Distt. Yavatmal.
4. Kiran Maroti Tagadpalliwar,
aged about 35 Yrs., Occu. Business,
R/o Udasi Nagar, Pusad,
Tah. Pusad, Distt. Yavatmal.
5. Prashant Maroti Tagadpalliwar,
aged about 30 Yrs., Occu. Business,
R/o Udasi Nagar, Pusad,
Tah. Pusad, Distt. Yavatmal.
6. Girish Maroti Tagadpalliwar,
aged about 24 Yrs., Occu. Business,
R/o Udasi Nagar, Pusad,
Tah. Pusad, Distt. Yavatmal.
7. Sou. Manjusha Ganesh Basatwar,
aged about 32 Yrs., Occu. Household,
R/o Shivaji Nagar, Ambedkar Marg
Pune, Tah. & Distt. Pune. :: PETITIONERS
..Versus..
1. Sanjay Rameshwar Bhandari,
aged about 40 yrs., Ocp. Business,
::: Uploaded on - 25/04/2016 ::: Downloaded on - 29/07/2016 23:11:51 :::
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r/o Motinagar, Pusad,
Tah. Pusad, Distt. Yavatmal.
2. Manoj Baburao Wargantwar,
aged about 38 Yrs., Occu. Business,
R/o Maheshnagar, Digras,
Tah. Digras, Distt. Yavatmal.
(petition is dismissed against respondent no.2) :: RESPONDENTS
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Shri P.S. Chawhan, Advocate for the petitioners.
Shri J. B. Kasat, Advocate for respondent no.1.
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CORAM : S. B. SHUKRE, J.
ig DATE : 21 APRIL 2016
ORAL JUDGMENT
1. Heard Shri P.S. Chawhan, learned advocate for the petitioners and Shri
J. B. Kasat, learned advocate for the respondent no.1. The petition is dismissed
against respondent no.2 as per the order passed by the learned Registrar
(Judicial) on 19/6/2015, for not serving the respondent no.2.
2. Rule. Rule made returnable forthwith. Heard finally by consent.
3. The petitioners/defendants take exception to the order passed by the
trial Court rejecting their application (Exh. No.65) praying for permission to
amend the written statement. The learned trial Judge has rejected the
application filed by the petitioners on the ground that the application seeking
amendment to the written statement is filed after recording of evidence of the
plaintiff i.e. after the commencement of the trial and the petitioners have not
been able to show that in spite of due diligence they were not in a position to
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bring on the record the pleadings now sought to be brought on the record by
the proposed amendment.
4. Shri Kasat, learned Counsel for respondent No.1 has relied on the
judgment given by this Court in the case of Vidyabai and others V/s.
Padmalatha and another reported in 2009 (4) Mh.L.J. 30 and the judgment
given in the case of J. Samuel and others V/s. Gattu Mahesh and others
reported in 2012 (4) Mh.L.J. 40 and has submitted that the prayer of the
petitioners to incorporate the proposed amendment cannot be granted as the
petitioners have not been able to show that in spite of due diligence they were
not able to bring on the record the facts, earlier. The learned advocate has
submitted that the proposed amendment cannot be granted in view of the bar
created by proviso below Rule 17 of Order 6 of the Code of Civil Procedure.
5. The petitioners are seeking to incorporate paragraph No.21-A to the
written statement which runs into 4 sub-paragraphs. Third sub-paragraph of
the proposed amendment deals with the facts relating to the disposal of the
Special Civil Suit No.35 of 2008 on 13th June, 2012. Though the Special Civil
Suit No.35 of 2008 came to be dismissed in default on 13 th June, 2012 and the
affidavit in lieu of evidence of the plaintiff was filed on the record in October,
2012 i.e. after the disposal of the Special Civil Suit No.35 of 2008, considering
the short period between the disposal of the Special Civil Suit No.35 of 2008
and the commencement of trial, the petitioners can be said to have passed the
due diligence test and so can be permitted to incorporate sub-paragraph no.3 of
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proposed paragraph No.21-A, in the written statement, in view of the
judgments of Hon'ble Supreme Court in Vidyabai & J. Samuel (supra). As far as
other three sub-paragraphs of the proposed paragraph No.21-A are concerned,
they cannot be permitted to be incorporated inasmuch as they deal with the
events which were in the knowledge of the petitioners since earlier times and
the petitioners have not been able to overcome the bar created by proviso to
Rule 17 of Order 6 of the Code of Civil Procedure.
6.
In view of the above, the following order is passed :
(i) The impugned order passed by the trial Court is partly quashed
and set aside insofar as it relates to third sub-paragraph and
proposed paragraph No.21-A.
(ii) The petitioners are permitted to incorporate third sub-paragraph
of proposed paragraph No.21-A of the application (Exh. No.65)
filed by the petitioners.
(iii) The prayer of the petitioners for incorporating the other three
sub-paragraphs of paragraph No.21-A as per the proposed
amendment is not granted.
(v) As the civil suit is of 2005, the learned trial Judge is requested to
dispose of the civil suit by 31st August, 2016.
(v) The petition is partly allowed in the above terms.
Rule is made absolute in the above terms. No costs.
JUDGE
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