Bombay High Court
Sharad S/O Kashinath Bule vs Vinayak S/O Kashinath Bule on 20 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.6111 OF 2015
Sharad s/o Kashinath Bule,
Aged about 66 years, Occ. Cultivator,
R/o Near Shrikushna Mandir,
Kediya Plots, Akola,
Tq. and Dist. Akola. ... Petitioner
-vs-
Vinayak s/o Kashinath Bule
Aged about 72 years, Occ. Cultivator,
R/o Keliveli, Tq. Akot, Dist. Akola. ... Respondent.
Shri C. A. Joshi, Advocate for petitioner.
Shri R. D. Bhuibhar, Advocate for respondent.
CORAM : A.S.CHANDURKAR, J.
DATE : July 20, 2016
Oral Judgment :
Rule. Heard finally with consent of learned counsel for the
parties. The petitioner has challenged two orders passed by the Appellate
Court. By the first order, the application for amending the plaint has been
rejected and by the other order the amendment seeking to raise additional
grounds in the memorandum of appeal has been partly allowed.
2. The petitioner is the original plaintiff who has filed suit for
declaration of his ownership, possession and perpetual injunction. In the
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said suit which was filed against his brother, the petitioner averred that field
survey No.64/1 was sold to him by his father on 18/04/1979. It is further
pleaded that the sale deed dated 19/12/1980 executed in favour of the
defendant was a nominal document of sale. In the suit, the plaintiff sought
declaration of his title. The trial Court however dismissed the suit. Being
aggrieved, the petitioner filed an appeal. In the said appeal the plaintiff
sought amendment in the plaint to aver that the property in question was
not purchased from his father but from one Laxman Kasar. Further
averments were made in regard to the aspect of execution of a memorandum
of partition deed dated 29/04/1982. The Appellate Court disallowed this
application on the ground that the same was moved at a belated stage
though the necessary documents were available with the plaintiff. The other
application for raising additional grounds in the appeal was partly allowed.
One ground with relation to the relinquishment deed was permitted to be
raised while the other ground in relation to the memorandum of partition
was disallowed.
3. Shri C. A. Joshi, the learned counsel for the petitioner submitted
that the sale deed which was executed in favour of the plaintiff by one
Laxman Kasar was placed on record in the trial Court. The amendment was
merely to give the correct description of the vendor. He submitted that this
amendment did not change the nature of the proceedings. In so far as
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raising additional grounds in the memorandum of appeal is concerned, the
same ought to have been allowed considering the pleadings of the parties.
4. Shri R. D. Bhuibhar, the learned counsel for the respondent
supported both the impugned orders. He submitted that the Appellate Court
rightly disallowed the application of amendment as it was moved in the
appeal without any justifiable reason. The nature of the relief claimed and
the basis for the same would change if amendment were to be allowed. He
also submitted that the petitioner was rightly not permitted to raise
additional grounds in the appeal.
5. In so far as the application for amendment of the plaint is
concerned, the amendment pertains to mentioning the name of the
petitioner's vendor. The sale deed in this regard was produced by the
petitioner in the trial Court and the amendment could have been sought at
that stage itself. There is no justifiable reason for not seeking such
amendment in the trial Court. Same is the case with regard to the
memorandum of partition deed dated 29/04/1982 is concerned. As both
these documents were placed on record before the trial Court the application
for amendment moved in the appeal was rightly disallowed.
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6. In so far the permission to raise additional grounds is concerned,
as per ground (xiii-a), the same states that there was a partition on
29/04/1982 and shares were allotted to the brothers of the petitioner
including himself. This ground could have been permitted to be raised as
consideration thereof would ultimately depend upon the pleadings on record.
Averments in that regard were made in paragraph 4 of the plaint. To that
extent, the said order passed by the Appellate Court is required to be
modified.
7. In view of aforesaid, the order passed by the Appellate Court
refusing permission to amend the plaint stands confirmed. However, the
application for permission to raise additional grounds in the memorandum of
appeal is allowed and both the grounds are permitted to be raised.
Writ petition is partly allowed in aforesaid terms with no order as
to costs.
JUDGE
Asmita
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-: C E R T I F I C A T E :-
" I certify that this Judgment/order uploaded is a true and
correct copy of the original signed Judgment/order."
Uploaded by :
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Personal Assistant
Uploaded on :
22/07/2016
