Bombay High Court
Shri Laxman S/O Late Shri ... vs Smt. Manabai W/O Shri Gopalrao ... on 5 July, 2016
Bench: A.S. Chandurkar
wp1926.15.odt 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.1926 OF 2015
PETITIONERS: 1. Shri Laxman S/o Late Shri
Sadashivrao Nakshine, aged 64 years,
(Original Defendant
Occupation-Agriculturist, R/o Plot
No.1 on R.A.)
No.34, Baggirwar Layout, Ishwar
Nagar, Behind Jattewar Sabagruha,
Umred, Nagpur.
(Original Defendant 2. Shri Rambhau S/o Late Shri
2 on R.A.) Sadashivrao Nakshine, Aged 57,
Occupation: Agriculturist, R/o Plot
No.34, Baggirwar Layout, Ishwar
Nagar, Behind Jattewar Sabagruha,
ig Umred Road, Nagpur.
-VERSUS-
RESPONDENTS: 1. Smt. Manabai W/o Shri Gopalrao
Atkare, Aged adult, Occupation:
(Original Plaintiff 1
Housewife, R/o Rahatekar Wadi,
on R.A.)
Dasara Road, Mahal, Nagpur.
(Original plaintiff 2 2. Smt. Lilabai W/o Shri Wamanrao
on R.A.) Kawalkar, Aged adult,
Occupation:Housewife, R/o
Rahatekar Wadi, Dasara Road, Mahal
Nagpur.
Shri Ambarish Joshi Advocate for the petitioners.
Shri N. W. Almelkar, Advocate for respondent Nos. 1 and 2.
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CORAM: A.S. CHANDURKAR, J.
DATED: 05
th JULY, 2016.
ORAL JUDGMENT :
1. Rule. Heard finally with the consent of the learned
Counsel for the parties.
2. The petitioners who are the original defendants in
wp1926.15.odt 2/4
Regular Civil Suit No.44 of 2012 are aggrieved by the order passed
by the trial Court below Exhibit-30 thereby allowing the
application for amendment moved by the respondents. The
respondents are the original plaintiffs who had filed suit for
partition and separate possession. In this suit after the written
statement was filed by the petitioner, the issues came to be framed
on 15-4-2010. The plaintiffs' witness no.1 filed her affidavit on
14-9-2010. Thereafter on 10-11-2014, an application for
amendment seeking to add certain other properties in the suit
came to be moved. By the impugned order, this application has
been allowed.
3. Shri Ambarish Joshi, the learned Counsel for the
petitioners submitted that the application in question was moved
after the commencement of the trial. There were no averments in
the application that despite exercise of due diligence, the
amendment could not be sought earlier. He submitted that in
absence of exercise of due diligence, the amendment could not
have been allowed. He placed reliance on the judgment of the
Division Bench in Mahadeo s/o Maruti Bhange vs. Balaji s/o Shivaji
Pathade & Anr. 2012(7) ALL MR and Smt. Jayashree Subhash
Kalbande & Anr. Vs. Shri Bhaurao Nagorao Derkar & Ors.2014(3)
All MR 605.
wp1926.15.odt 3/4
4. Shri N. W. Almelkar, the learned Counsel for the
respondents supported the impugned order. According to him,
after the suit was transferred from one Court to another Court and
a different Counsel was appointed, it was noticed that certain
other properties were not included in the schedule of properties.
He submitted that the evidence had not commenced and therefore,
no prejudice was caused to the defendants by allowing the
amendment. He submitted that the amendment was found to be
necessary and therefore, while allowing the same, the trial Court
had granted costs to the other side. He placed reliance upon the
decision of the Hon'ble Supreme Court in C. M. Vereekutty v. C. M.
Mathukutty AIR 1981 SC 1533 and Raghu Thilak D. John v. S.
Rayapan and others AIR 2001 SC 699.
5. Having heard the respective Counsel and having
perused the application for amendment, it is clear that the same
has been filed after commencement of the trial. As held by the
Division Bench in Mahdeo Bhanje (surpa), the trial would
commence from the date of filing of affidavit in lieu of evidence.
In the present case, the affidavit has been filed on record on 14-9-
2010. In view of the proviso to Order VI Rule17 of the Code of
Civil Procedure, 1908 (for short, the Code) a case of exercise of
due diligence ought to have been made out by the plaintiffs.
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Except stating that after change in the Counsel the aforesaid fact
was noticed, there are no averments on the aspect of due
diligence. The same has been found to be necessary before
allowing the amendment after commencement of the trial. The
view in that regard had been taken in Jayashree Kalbande and
another (supra).
6. The trial Court while allowing the application has not
recorded any finding with regard to exercise of due diligence. The
only ground for allowing the amendment is that it would result in
avoiding multiplicity of proceedings. After the amendment to the
provisions of Order VI Rule 17 of the Code, exercise of due
diligence is required to be shown. In absence of the same being
shown, the amendment cannot be allowed. The decisions relied
upon by the learned Counsel for the respondents take into
consideration the provisions of Order VI Rule 17 of the Code prior
to its amendment.
7. In view of aforesaid, the order dated 12-1-2015 is
liable to be set aside. The same is accordingly set aside and the
application below Exhibit-30 stands rejected. The writ petition is
allowed in aforesaid terms. No costs.
JUDGE
//MULEY//
