Narayan Devram Chaudhari And ... vs Vatsalabai Shankar Chaudhari And ...
2016 Latest Caselaw 3038 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD




                                                                        
                             WRIT PETITION NO. 786 OF 2016




                                                
    1.      Narayan Devram Chaudhari
            Age: 68 years, Occ. Agriculture,




                                               
            R/o LIC Colony, Dhule Road,
            Amalner, Tq. Amalner,
            Dist. Jalgaon.

    2.      Tukaram Devram Chaudhari




                                        
            Age: 66 years, Occ. Agriculture,
            R/o Near Madkya Maroti, Kazipura,
                             
            Parola , Tq. Parola,
            Dist. Jalgaon.                                      ... Petitioners
                            
                     Vs.

    1.      Vatsalabai Shankar Chaudhari
            Age: 67 years, Occ. Household,
            R/o Mhasave, Tq. Parola,
      


            Dist. Jalgaon.
   



    2.      Anusayabai Vitthal Chaudhari
            Age: 62 years, Occ. Household,
            R/o Mhasave, Tq. Parola,
            Dist. Jalgaon.





    3.      Hirabai Bhagwan Chaudhari
            Age: 62 years, Occ. Household,
            R/o C/o. Bhagwan Hiraman Chaudhari
            Marwad, Tq. Amalner,
            Dist. Jalgaon.





    4.      Vimalbai Vinayak Chaudhari
            Age: 60 years, Occ. Household,
            R/o C/o. Vinayak Chindhu Chaudhari
            Behind Abhay College, 23rd Plot No.2,
            Ram Nagar, Dhule.                                   ... Respondents

                                      ----
    Mr. Girish Rane, Advocate for the petitioners.
    Mr. S.S. Patil, Advocate for the respondent no.1.
                                      ----



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                                     CORAM : SUNIL P. DESHMUKH, J.

DATE : 20-06-2016.

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally

with consent of the parties.

2. Aggrieved by the order dated 15-12-2015 upon an

application exhibit-31 in Regular Civil Suit No. 21 of 2007,

petitioner-plaintiff is before this court as his request for amendment

to plaint stands turned down. After hearing the learned counsel it

emerges that petitioners have filed aforesaid regular civil suit for

partition, and separate possession and injunction in respect of gut

no. 452.

2. Learned counsel for the petitioners contends that said

property went to the share of Smt. Vanubai, their mother has

interest in the same limited for life and after her death it was to

come back to the petitioners and others in the family. As the

mutation entry observed something which is adverse to the

petitioners interest, they had sought amendment to the plaint in

the suit. He further submits that in the suit although issues have

been framed and the suit is to reach the stage of trial.

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3. Learned counsel contends that the court had erred in

purporting to enter into merits of the case without letting any

opportunity to petitioners in respect of the amendment. He submits

that it is settled law that while considering amendment application,

merits and demerits of contentions in the proposed amendment

may not be looked into and the court has committed a grave error

at that.

4. Learned ig counsel Mr. Patil

defendant no.1 contends that the court may have seemingly appearing for original

decided the merits, however, it has decided it rightly and as

mutation entry cannot be a subject matter of challenge in a civil

suit. Additionally, he refers to that regular civil suit no. 29 of 2008

is pending among the parties. The averments about Gut No. 452 on

behalf of the present petitioners may give rise to inconsistency. He

further submits that the amendment may cause change in the

nature of the suit.

5. At the end of hearing it appears that R.C.S. No. 29 of

2008 is pending in which evidence has yet not commenced. It is for

partition of several properties including Gut No. 452. Having regard

to law as it stands the courts generally are to approach the

amendments liberally. The law also further shows that merits of the

contents of the amendment may not matter while considering

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application for amendment.

6. Although, it is contended that the reasons have not

been given by the petitioners as to why the amendments are

necessary yet since the suit concerns this property as well and the

plaintiffs considers the amendment appropriate for effective

adjudication, the same may not be detained from being allowed to

be carried out the for the reasons which are not germane while the

application was being considered.

7. The writ petition as such is allowed in terms of prayer

clauses 'A' and 'B'. Application exhibit-31 stands granted. The

R.C.S. No. 21 of 2007 to proceed accordingly. Rule made absolute

in aforesaid terms.

(SUNIL P. DESHMUKH) JUDGE