Bombay High Court
Vasanta S/O Vikram Kolhe vs Jayram S/O Vikram Kolhe And Others on 26 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6818 OF 2015
PETITIONER: Vasanta S/o Vikram Kolhe, aged
about 60 years, Occupation:
Agriculturist, R/o at Ambashi, Tah.
Chikhli, Dist. Buldhana.
-VERSUS-
RESPONDENTS: 1. Jayram S/o Vikram Kolhe, aged about
70 years, Occupation:Agriculturist,
ig 2. Sitaram S/o Vikram Kolhe, aged
about 65 years, Occupation :
Agriculturist,
3. Dnyandeo S/o Vikram Kolhe, aged
about 56 years, Occupation :
Agriculturist,
4. Totaram S/o Vikram Kolhe, aged
about 53 years, Occupation:
Agriculturist,
The respondent No.1 to 4 are R/o at
Dhodap, Tah. Chikhli, Dist. Buldhana.
5. Dhrupadabai W/o Vithoba Kandaje,
aged about 51, Occupation :
Agriculturist, R/o at Kulamkhed, Post
Satgaon Mhasla, Tah. and Dist.
Buldhana.
Shri N. B. Kalwaghe, Advocate for the petitioner.
Ms. Deepali Sapkal, Advocate for respondent Nos.1, 3 & 5.
CORAM: A.S. CHANDURKAR, J.
DATED: 26
th JULY, 2016.
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ORAL JUDGMENT :
1. Rule. Heard finally with the consent of the learned
Counsel for the parties.
2. The petitioner is the original plaintiff who is aggrieved
by the order passed by the trial Court below Exhibit-66 thereby
rejecting the application for amending the plaint for correction of
a typographical error.
3. ig The petitioner and the respondent Nos.1 to 4 are
brothers. The petitioner has filed the suit for partition and
separate possession of joint family property. One agricultural field
has been described as Gat No.42 in the plaint admeasuring 0.41 R.
In the written statement filed on behalf of the defendant nos.1,3
and 5, the description of the suit property has been stated to be
incomplete and erroneous. The petitioner thereafter filed his
affidavit in lieu of evidence by describing the property as it was so
described in the plaint. The petitioner was thereafter cross-
examination. The defendant no.1 then filed his affidavit on
record. At this stage, the petitioner filed an application for
amendment seeking correction of the description of Gat No.42 as
Gat No.142. By the impugned order, the trial Court rejected the
application on the ground that the trial had commenced.
4. Shri N. B. Kalwaghe, the learned Counsel for the
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petitioner submitted that the only amendment sought was for
correction of a typographical error by describing Gat No.42 as Gat
No.142. He referred to the deposition of the petitioner as well as
his cross-examination to indicate that the said property had been
wrongly described as Gat No.42. According to him, the 7/12
Extracts at Exhibits-41 to 44 also indicated that the correct Gat
number was 142. He, therefore, submitted that in such
circumstances, the amendment deserves to be allowed as the same
would not have caused any prejudice to the defendants. He placed
reliance on the decision in Sajjan Kumar Vs. Ram Kishan (2005)
13 SCC 89 and Pinky Devi Vs. Krishnamurthy 2013 (3) Mh.L.J. 32.
5. Ms. Deepali Sapkal, learned Counsel for the
respondent Nos.3 and 5 supported the impugned order. It was
submitted that the petitioner was not diligent in moving the
amendment application especially when in the cross-examination,
it was suggested that Gat No.142 was self acquired property of the
defendants. The learned Counsel in support of her submissions
placed reliance upon the decision in J. Samuel and others Vs. Gattu
Mahesh and others (2012) 2 SCC 300 and submitted that even in
the reply to the notice issued by the petitioner before filing the
suit, this error was pointed out.
6. The suit in question is for partition of property alleged
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to be joint family property. There are four agricultural fields of
which the partition had been sought. The revenue records at
Exhibit-42 indicate that the correct Gat No.142. This can also be
gathered from the cross-examination of the petitioner. Mere
amendment sought is for replacing the figure 42 by figure 142.
7. Though it is a fact that the application in question
could have been moved at an earlier point of time, considering the
observations of the Hon'ble Supreme Court in Sajjan Kumar
(supra), if the amendment is allowed the same would not cause
any prejudice to the case of the parties in view of the fact that the
suit is for partition. In J. Samuel And others (supra), the
amendment sought for insertion of three sentences in the plaint
and the same was sought to be justified as being a typographical
error. In that background, the Hon'ble Supreme Court found that
the plaintiff was not diligent as he had not noticed that the said
sentences were not incorporated in the plaint. In these facts, the
ratio of the said decision cannot be made applicable to the facts of
the present case.
8. In view of aforesaid, the amendment as sought is
found necessary to adjudicate the suit for partition. Hence, the
order dated 29-10-2015 passed below Exhibit-66 is set aside
subject to costs of Rs.2000/- to be paid by the petitioner to the
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respondent nos.1, 3 and 5 - defendant nos. 1, 3 and 5 in the trial
Court. Subject to aforesaid, the amendment shall be permitted to
be carried out. The defendants would be at liberty to
consequentially amend their pleadings.
9. Rule is made absolute in aforesaid terms. No costs.
JUDGE
//MULEY//
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