Bombay High Court
Anupam S/O Satyaranarayan Zanwar vs Sau Kokila Arunrao Gadekar And ... on 18 July, 2016
Bench: Z.A. Haq
Judgment 1 wp7398.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 7398 OF 2014
Anupam S/o. Satyanarayan Zanwar,
Aged 45 years, Occup : Business,
R/o. Ganesh Colony, Amravati,
Tq. & Dist. Amravati.
.... PETITIONER.
(Org. Plaintiff)
ig // VERSUS //
1. Sau. Kokila Arunrao Gadekar,
Aged - Adult, Occup. - Business,
R/o. Shirbhate Layout, Chaityanya
Colony, Bye-pass Road, Amravati,
Tq. & dist. Amravati.
2. Shri Shivkumar Baliramji Yadav,
Aged - adult, Occup. Business,
R/o. Mangilal Plot, Camp Road,
Amravati, Tq. & dist. Amravati.
3. Sau. Smita Sudhir Thawali,
C/o. Sudhir Madhukarrao Thawali,
Aged - adult, Occup. Household,
Gowardhan Vihar, Paratwada,
Tq. Achalpur, Dist. Amravati.
4. Sau. Pratibha Avinash Belsare,
C/o. Shri Avinash Sudhakarrao Belsare,
Narayanpur Road, Paratwada,
Tq. Achalpur, Dist. Amravati.
.... RESPONDENT
.
___________________________________________________________________
Shri S.S.Alaspurkar, Advocate for Petitioner/Plaintiff.
Ms Deepali Sapkal, adv. h/f. Shri A.S.Kilor, Adv. for Respondent No.1/Deft.
None for Respondent Nos. 2 to 4.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JULY 18, 2016.
Judgment 2 wp7398.14.odt
ORAL JUDGMENT :
1. Heard learned advocate for the petitioner-original plaintiff and
learned advocate for the respondent No.1-original defendant. None
appeared for the other respondents though notices of final disposal are
served.
2.
RULE. Rule made returnable forthwith.
3. The plaintiff has challenged the order passed by the trial Court
rejecting application (Exh.65) filed by the plaintiff seeking permission to
amend the plaint. Before this Court, the plaintiff has filed an affidavit sworn
on 13th July, 2016 stating that he may be permitted to delete some portion
of the proposed paragraph No.8-A and to add prayer clause 'I' in the plaint.
4. After going through the impugned order, I find that the learned
trial Judge has adverted to the merits of the proposed amendment which in
my view, should not have been done at this stage. While considering the
application seeking permission to amend the plaint, the learned trial Judge
was required to examine whether the plaintiff can be permitted to
incorporate the proposed amendment. Whether the nature of the claim
made by the plaintiff changes and whether the application is filed after
Judgment 3 wp7398.14.odt
commencement of trial and the plaintiff has been able to overcome the bar
created by the proviso below Rule 17 of Order 6 of the Code of Civil
Procedure. I find that the impugned order is unsustainable.
However, in view of the misconceived affidavit filed on behalf
of the plaintiff before this Court, it would not be possible for this Court to
allow the proposed amendment and it would be appropriate to grant
opportunity to the plaintiff to file proper application before the trial Court.
5. Hence, the following order :
i) The impugned order is set aside.
ii) The application (Exh.65) filed by the plaintiff before the trial
Court is rejected.
iii) The plaintiff is granted liberty to file proper application before
the trial Court.
iv) If the application seeking permission to amend the plaint is
filed by the plaintiff within one month from today, it shall be
considered by the trial Court and appropriate order be passed
on it according to law.
The petition is disposed in the above terms.
Judgment 4 wp7398.14.odt
The plaintiff shall pay costs of Rs.Five Thousand to the
defendant No.1 and produce receipt on record of the trial Court within one
month.
JUDGE
RRaut..
Judgment 5 wp7398.14.odt
C E R T I F I C A T E
I certify that this Judgment uploaded is a true and correct copy of
original signed Judgment.
Uploaded by : R.B. Raut, PS Uploaded on : 22.07.2016.
