Bombay High Court
Kamlabai @Kamal W/O Madhukar ... vs Smt. Meerabai Wd/O Harilal Kolte ... on 27 April, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.3936 OF 2014
Petitioner : Kamlabai @ Kamal w/o Madhukar Kalekar,
Aged about 49 years, Occ : Agriculturist,
Post Pathrai, Tah. Ramtek, Dist. Nagpur.
-- Versus --
Respondents
: 1] Smt. Meerabai wd/o Harilal Kolte,
Aged about 58 years, Occ : Household,
Near Bore Nala, Electricity Tower, Gittikhadan,
Katol Road, Nagpur.
2] Smt. Rekha Laxman Vimalkar,
Aged about 55 years, Occ : Household,
R/o Jaitala, Nagpur.
3] Smt. Sarla w/o Santosh Menar,
Aged about 44 years, Occ : Household,
R/o At Post - Warthi, Bhandara.
4] Shri Deshraj Premchand Paunikar,
Aged about 47 years, Occ : Business,
R/o Mahajanwadi, Near Sutgirni,
C/o Gaurabai Devgune House, Hingana,
Distrcit Nagpur.
5] Shri Madan s/o Premchand Paunikar,
Aged about 52 years, Occ : Business,
R/o Bhandewadi, Antujinagar, Pardi, Nagpur.
6] M/s. Neeraja Realtors Pvt. Ltd.,
its Office at V.C.A. Complex,
R/o. Civil Lines, Nagpur,
Authorized signatories for Neeraja Realtors Pvt. Ltd.
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7] Shri Rohit s/o Kailash Laddha,
Aged about 30 years, Occ : Business,
R/o Surana Bhavan, Gandhi Chowk, Sadar,
Nagpur.
8] Smt. Tulsabai Harichandra Deogade
(since deceased)
9] Shri Ramdas s/o Harichand Deogade,
Aged about 61 years, Occ : Business,
10] Shri Punaram s/o Harichand Deogade,
Aged about 59 years, Occ : Agriculturist.
11] Shri Yuvraj s/o Harichand Deogade,
Aged about 55 years, Occ : Service.
12] Shri Raju s/o Harichand Deogade,
Aged about 45 years, Occ : Labour.
13] Smt. Suman wd/o Bhaurao Deogade,
Aged about 59 years, Occ : Household,
14] Shri Anil s/o Bhaurao Deogade,
Aged about 36 years, Occ : Labour.
15] Shri Sunil s/o Bhaurao Deogade,
Aged about 31 years, Occ : Labour.
16] Shri Suresh s/o Harichand Deogade,
Aged about 51 years, Occ : Service.
All resident of Gumgaon, Tahsil Hingana,
District Nagpur.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri A.R. Kalraiya, Advocate for the petitioner.
Shri P.P. Kothari, Advocate for respondent nos.1 to 7.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
C ORAM : S. B. SHUKRE, J.
DATE : APRIL 27, 2016.
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ORAL JUDGMENT :-
Rule. Rule made returnable forthwith.
02] Heard finally with the consent of the learned Counsel for the
parties.
03] By this writ petition, the order dated 07/04/2014, passed
below the application for amendment of written statement filed under
Order VI Rule 17 of the Code of Civil Procedure in Special Civil Suit
No.1059/2008 by the learned 9th Joint Civil Judge, Senior Division,
Nagpur, has been challenged.
04] It is seen from the impugned order that the learned Civil
Judge has taken a view that the proposed amendment is basically in the
nature of improvement in the facts to be carried out on the suggestion of
an Advocate, which is not permissible under the law. The learned Civil
Judge has placed reliance upon the ratio of the case decided by the
Allahabad High Court and reported as Smt. Sweta Bhardwaj vs. Ankur
Bhardwaj - 2013(4) Civil L.J. 545.
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05] According to the learned Counsel for the petitioner, this
amendment is not an improvement in the facts, but a submission of legal
nature and, therefore, the same ought to have been allowed by the learned
Civil Judge.
06] According to the learned Counsel for respondent nos.1 to 7,
the proposed amendment is basically a factual submission amounting to
improvement in facts sought to be taken up on the suggestion of the
Advocate and, therefore, there is no illegality or perversity committed by
the learned Civil Judge in passing the impugned order.
07] On going through the proposed amendment, I find that it
tends to suggest that there are some other legal heirs, who have not been
joined as parties and it also seeks to place on record a legal submission that
if the necessary parties are not before the Court, no decision affecting their
rights could be taken. Thus, the proposed amendment is partly factual and
partly legal. So far as the factual aspect of the proposed amendment is
concerned, same cannot be sought to be brought on record merely on the
suggestion of the Advocate as the Advocate would not be having any
knowledge of the facts of the case. Therefore, to this extent, the view taken
by the learned Civil Judge cannot be found to be perverse or in breach of
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settled position of law. As regards the aspect of legal submission, it can
even be made part of the argument to be canvassed at the conclusion of the
trial and it need not be necessarily brought on record by way of an
amendment sought under Order VI Rule 17 of the Code of Civil Procedure.
If the amendment has to be brought on record by taking recourse to this
provision of law, a party seeking the amendment would have to answer the
test of due diligence and it is seen that this test has not been cleared by the
petitioner.
08] Nevertheless, as stated earlier, the petitioner would have the
liberty to take up a plea which is a submission as regards question of law,
pure and simple.
09] In this view of the matter, I find no substance in this writ
petition and it deserves to be dismissed.
10] The writ petition stands dismissed. Rule is discharged. No
costs.
JUDGE
*sdw
