Bombay High Court
Smt. Maltibai Madhusudhan ... vs Anup Arial Devidsingh And 2 Others on 20 June, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5726 OF 2014
Smt. Maltibai Madhusudhan Barlinge,
Aged 80 years, Occupation - Household
ig - (Dead)
Work, R/o Civil Lines, Paratwada,
Tq. Achalpur, District Amravati.
L.Rs. of the petitioner.
1) Dattapiyush s/o Madhusudan Balingay, - (Amended as per
Age 53 years, Occupation - Self, Court's order dated
R/o Barlingay Wada, Civil Lines, 07-06-2016).
Opp. State Bank of India, Paratwada,
Tq. Achalpur, District Amravati.
2) Megha w/o Arun Jategaonkar,
Age 60 years, Occupation - Housewife,
R/o Behind Sangita Wadi, Dombivali (E).
3) Shubhangi w/o Dilip Vakil,
Age 58 years, Occupation - Housewife,
R/o Rameshwar Road, Bada Bam,
Khandwa (MP).
4) Sunanda w/o Sanjay Haridas,
Age 56 years, Occupation - Housewife,
R/o Vivekananda Ward, Yadav Colony,
Jabalpur (MP)
5) Padma w/o Anil Didolkar,
Age 54 years, Occupation - Housewife,
R/o Barlingay Wada, Civil Lines,
Opp. State Bank of India, Paratwada,
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Tq. Achalpur, District Amravati.
6) Seema w/o Sunil Bhole,
Age 51 years, Occupation - Housewife,
R/o Swawalambi Nagar, Last Bus Stop,
Nagpur. .... PETITIONERS
VERSUS
1) Anup Arial Devidsingh,
Aged 52 years, Occupation - Business,
2) Shashikala Anup Davidsingh,
Aged 48 years, Occupation - Business,
Both R/o Civil Lines, Paratwada,
Tq. Achalpur, District - Amravati.
3) Devidas Bodamal Budhwani,
Aged 50 years, Occupation - Business,
R/o Ganesh Nagar, Paratwada,
Tq. Achalpur, District - Amravati. .... RESPONDENTS
______________________________________________________________
Shri R.L. Khapre, Advocate for the petitioner,
Shri C.A. Babrekar, Advocate for the respondent Nos.1 and 2,
Shri J.B. Kasat, Advocate for the respondent No.3.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 20
JUNE, 2016
th
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ORAL JUDGMENT :
1. Heard Shri R.L. Khapre, Advocate for the petitioner-
original defendant No.1, Shri C.A. Babrekar, Advocate for the
respondent Nos.1 and 2-original plaintiffs and Shri J.B. Kasat,
Advocate for the respondent No.3-original defendant No.2.
2.
Rule. Rule made returnable forthwith.
3. The plaintiffs filed the civil suit praying for decree for
declaration that they have the right to purchase the suit property and
the defendants be restrained by way of injunction from creating third
party interest over the suit property.
4. The defendant No.1 filed application (Exhibit No.28)
under Order VI Rule 16 of the Code of Civil Procedure contending that
the pleadings being vague, they be struck off. The defendant No.1
filed application (Exhibit No.27) under Order VII Rule 11 of the Code
of Civil Procedure contending that the plaintiffs had not paid proper
Court fee and the claim of the plaintiffs was undervalued and therefore
the plaint be rejected. The plaintiffs filed application (Exhibit No.34)
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under Order VI Rule 17 of the Code of Civil Procedure seeking
permission to amend the plaint.
The learned trial Judge rejected the application (Exhibit
No.28) filed by the defendant No.1. This order is not challenged.
The learned trial Judge, by the order dated 15-07-2014,
allowed the application (Exhibit No.34) and permitted the plaintiffs to
amend the plaint. This order is challenged by the defendant No.1 in
this petition.
5. The learned Advocate for the petitioner-defendant No.1
has argued that the proposed amendment changes the nature of the
suit and therefore, it should not have been allowed. After going
through the copy of plaint and the application (Exhibit No.34), I find
that the submission made on behalf of the petitioner-defendant No.1
cannot be accepted. By the proposed amendment, the plaintiffs are
staking their claim for specific performance of the agreement. The
amendment proposed by the plaintiffs does not change the nature of
their claim and it cannot be said that the plaintiffs cannot be permitted
to incorporate the proposed amendment. The challenge to the order
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passed on application (Exhibit No.34) is rejected.
6. The order passed on the application (Exhibit No.27)
directing the plaintiffs to pay deficit Court fee also cannot be faulted in
view of the provisions of Order VII Rule 11(b) of the Code of Civil
Procedure which enables the Court to grant time to the plaintiffs to pay
the deficit court fees.
I see no reason to interfere with the impugned orders.
The petition is dismissed. In the circumstances, the parties to bear
their own costs.
JUDGE
adgokar
