Bombay High Court
Shri Jagdish S/O Dattatray Dixit vs Municipal Council, Through Its ... on 6 June, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.1281 OF 2014
Shri Jagdish s/o Dattatray Dixit,
Aged about 65 years,
Occupation - Retired/Pensioner,
R/o House No.5-B, Akash Vihar,
Near New Bus Stand, Anjangaon Surji,
Tq. Anjangaon Surji, District Amravati. .... PETITIONER
VERSUS
1) Municipal Council,
Anjangaon Surji, through its Chief
Officer, Anjangaon Surji, Tq. Anjangaon
Surji, District Amravati.
2) Shri Sanjay s/o Janraoji Mendhe,
Aged about 42 years,
Occupation - Business,
C/o Ranjeet Medical Stores,
Kapustalni, At Post - Kapustalni,
Tahsil - Anjangaon, District Amravati. .... RESPONDENTS
______________________________________________________________
Shri A.R. Bhole, Advocate h/f Ms. Ashwini Athalye, Advocate for the
petitioner,
Shri F.T. Mirza, Advocate for the respondent No.1,
None for the respondent No.2.
______________________________________________________________
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CORAM : Z.A. HAQ, J.
DATED : 6
JUNE, 2016
th
ORAL JUDGMENT :
1. Heard Shri A.R. Bhole, Advocate holding for Ms. Ashwini
Athalye, Advocate for the petitioner/original plaintiff and Shri
F.T. Mirza, Advocate for the respondent No.1.
None appears for the respondent No.2.
2. Rule. Rule made returnable forthwith.
3. The petitioner/plaintiff has challenged the order passed by
the trial Court, partly rejecting the application (Exhibit No.21) under
Order VI Rule 17 read with Section 151 of the Code of Civil Procedure.
4. The petitioner/plaintiff has filed the civil suit praying for
declaration that the construction undertaken by the respondent No.2 is
illegal and has prayed for decree for injunction restraining the
respondent No.2/defendant from undertaking construction over the
suit property. The petitioner filed the application (Exhibit No.21)
seeking permission to amend the plaint and to bring on record the
subsequent events and to raise challenge to the revised permission
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dated 15-5-2013 granted in favour of the respondent No.2 by the
respondent No.1, after the filing of the civil suit. The petitioner also
sought permission to amend the prayer clause of the civil suit. The
learned trial judge, by the impugned order, has permitted the
petitioner to bring on record the challenges relating to the revised
permission granted subsequently, however, the request of the
petitioner to amend the prayer clause of the civil suit is rejected in
view of the bar created by Section 149 of the Maharashtra Regional
and Town Planning Act, 1966.
5. After hearing the learned Advocates for the respective
parties, I find that there is no legal impediment in granting the
proposed amendment as per application (Exhibit No.21). Whether the
prayer sought to be incorporated by the proposed amendment can be
granted or not, will have to be considered at appropriate stage and it
cannot be considered at this stage. I find that the learned trial Judge
has committed an error of jurisdiction by adverting to this issue at this
stage and therefore, the order passed by him rejecting the request of
the petitioner to amend the prayer clause of the civil suit is
unsustainable.
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6. Hence, the following order :
i) The impugned order is modified.
ii) The application (Exhibit No.21) filed by the petitioner
seeking permission to amend the plaint is allowed.
iii) Rule is made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
pma
