Bombay High Court
Mohammad Ismail Mohammad Yusuf vs Changdev Ganpat Bhagwat And ... on 14 March, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5000 OF 2015
Mohammad Ismail Mohammad Yusuf PETITIONER
Age - 52 years, Occ - Business
R/o Kokamthan, Taluka - Kopargaon,
District - Ahmednagar,
Presently residing at
Dhake Colony (Arco Transport)
Jalgaon, Taluka and District - Jalgaon
VERSUS
1.
Changdev Ganpat Bhagwat
Age - 55 years, Occ - Agriculture
RESPONDENTS
2. Sandip Changdev Bhagwat
Age - 32 years, Occ - Agriculture
3. Ganesh Changdev Bhagwat
Age - 29 years, Occ - Agriculture
4. Suresh Changdev Bhagwat
Age - 55 years, Occ - Agriculture
No.1 to 4 R/o Malwadi (Kokamthan)
Behind Jangale Aashram,
A/p Kokamthan, Taluka - Kopargaon,
District - Ahmednagar
5. Sanjay Kashinath Dandawate,
Age - 45 years, Occ - Agriculture
R/o Teen Chari, Kokamthan,
Taluka - Kopargaon,
District - Ahmednagar
.......
Mr. Zafar M. Pathan, Advocate for the petitioner
Mr. Milind Patil, Advocate for respondents No.1 to 5
.......
[CORAM : SUNIL P. DESHMUKH, J.]
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DATE : 14th MARCH, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard learned
advocates for the parties finally with consent.
2. Regular Civil Suit No.85 of 2015 has been instituted by
present petitioner claiming rights to the property concerned in
his own right, inter alia a will and as such, had been claiming to
be in possession. The plaintiff alleged threats to his said
possession and instituted the suit claiming permanent injunction
against the defendants.
3. The defendants, on appearance, filed their written
statement and pointed out that as a matter of fact the rights
being claimed by the plaintiff to the suit property are absolutely
misconceived and that he himself has sold the property to a firm
and as such, the firm is the owner of the property.
4. Subsequently, the petitioner moved an application Exhibit-
28 seeking amendment to the plaint making correction in the
title clause, he being one of the partners of the firm to which the
property has been purportedly sold. The application was resisted
by the defendants contending that by very own acts of the
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plaintiff it emerges that the plaintiff has no title to the suit
property. The application is mala fide and that with the
amendment sought the suit would undergo alteration.
5. The trial court, under its order dated 21 st April, 2015
rejected the request observing that the amendment, if allowed
would undergo conversion from a suit by plaintiff in his individual
capacity into a suit by and on behalf of a firm and as such, there
would be change in the nature of the suit.
6. Learned advocate for the petitioner contends that it cannot
be denied that the erstwhile plaintiff had been a partner of the
firm, who has been managing affairs of the firm. In the course of
time, while exigency had arisen to institute the suit, it has
slipped out of his memory that the property had been dealt with
by him in favour of the firm, wherein also he is a partner. He
further refers to that it cannot be denied that in either capacity
he claims to be in possession of the suit property and as such,
the suit for injunction can be maintainable. The change being
brought about under the amendment is an effort to bring the suit
in compliance with the legal procedural requirements. He
submits that the main texture and structure of the suit being
injunction would hardly change and as such, the apprehension
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entertained by the trial court upon submissions of the
defendants is misconceived and untenable. He submits that as
yet the suit has not ripened for evidence and the Supreme Court
and High Courts have all along considered that approach to an
application for amendment should be liberal. He submits that as
far as relief claimed against the defendants is concerned, it
would not undergo any change. It would continue to be of
injunction and no prejudice in the circumstances can be said to
have been caused to the defendants' case in that matter.
According to his submissions, in the present case possession
would be the primary matter. He further refers to that the
plaintiff had relied on various citations which have been referred
to by the trial court in the impugned judgment. However, the
spirit and ratio under the same appears to have been missed out
while deciding the application for amendment.
7. Mr. Milind Patil, learned advocate for the respondents -
defendants vehemently submits that the impugned order had
been rightly passed. The whole basis of the suit undergoes
change if amendment as sought is allowed. He submits that
there are lot of avenues open for the plaintiff, even under the
procedure. He may institute a fresh suit through the firm and /
or he may withdraw the suit with liberty to institute a fresh suit
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on the same cause of action. According to him, since the original
plaintiff had no title to the suit property on the date of the suit,
the suit could not have been maintained and the situation could
have been continued even up to the end of the suit. He submits
that the application has been moved mala fide in order to cause
prejudice to the interest of the defendants. It is being submitted
that the defendants are in possession of the suit property.
8. After having considered the submissions on behalf of the
learned advocates for the parties, it ought to be seen that the
suit is yet to reach the stage of evidence. Issues do not appear
to have been framed as yet. The approach to amendment
application generally will have to be liberal. In the present case,
it cannot be gainsaid that the plaintiff who had originally
instituted the suit for injunction claims to be in possession of the
property with reference to certain rights to the suit property and
as such, claims simplicitor injunction against the defendants,
who allegedly were causing obstruction and hindrance to his
possession. It is also not denied that the plaintiff is partner of
the firm to which the property has been sold by him. The other
partner, who according to learned advocate Mr. Patil is not before
the court has not shown any interest in the suit and has not filed
any application in this respect, is of little significance as far as
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present matter is concerned. It is not denied that he is also a
partner of the firm. An application has been moved by a partner
of the firm for amendment. In the circumstances, a corrective
action pursuant to the factual position emerges wherein the
original plaintiff who is partner of the firm appears to be
interested. Any deficiency, discrepancy, defect or lacunae
emerges on allowing the amendment, those would have to be
dealt with in accordance with facts and law.
9.
In the circumstances, looking at that a suit otherwise could
have been maintained by the plaintiff in his capacity as a
partner, the plaintiff claims to be in possession of the property. If
it is brought to the notice that the circumstances refer to that
they are little different than what has been contended and
corrective action at appropriate stage has been taken instead of
relegating the petitioner to follow procedure of withdrawal of suit
or for that matter filing a fresh suit, the defendants having
considered that the very property was sold by the plaintiff to a
firm wherein he is a partner, in this case, the amendment may
not be said to change nature of the suit and as such, the
application deserves a proper treatment, according to the
principles of justice, equity and good conscious. However, cost of
Rs.10,000/- is imposed on the petitioner. The costs be paid to
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the defendants. The costs be deposited in the trial court within a
period of four weeks from the date of receipt of writ of this order
to the trial court. If the amount of costs is not deposited within
stipulated period, this order should be deemed to have been
recalled. Upon amendment it is open for the parties to agitate
such points as are are advised in accordance with facts and law.
10. Writ petition, as such, stands allowed in terms of prayer
clause "B". Application Exhibit-28 stands allowed. Rule is made
absolute accordingly. Suit be proceeded with accordingly.
[SUNIL P. DESHMUKH, J.]
drp/wp5000-15
