Bombay High Court
Trilokchand Sugnomal Dhanwani ... vs Ashok Dallomal Nathani on 15 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.7025 OF 2015
Trilokchand Sugnomal Dhanwani (Sindhi) PETITIONERS
Since deceased through L.Rs.
1] Gagandas Trilokchand Sindhi
Age - 45 years, Occ- Business,
R/o Block No.3, Room No.10,
Juni Sindhi Colony,
Nandurbar
2] Shri Prakash Trilokchand Sindhi
Age - 30 years, Occ - Business,
R/o Plot No.72, Nagai Nagar,
Nandurbar
3] Draupatibai Trilokchand Sindhi
Age - 40 years, Occ - Household
R/o Plot No.72, Nagai Nagar,
Nandurbar
4] Ratnabai Jagdishlal Ahuna,
Age - 35 years, Occ - Household
R/o Sindhi Colony,
Near Laylaxmi Kirana Bhandar,
Umanagar, Nashik
5] Shamabi Rameshlal Sindhi
Age - 32 years, Occ - Household
R/o House No.525, Ramnagar,
Surat (Gujrath)
6] Rekhabai Jitendrakumar Sindhi
Age - 30 years, Occ - Household
R/o Near Jhulelal Temple,
Sindhi Colony,
Malkapur
VERSUS
Ashom Dallomal Nathani RESPONDENT
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Age - 52 years, Occ -
R/o June Sindhi Colony,
Nandurbar
.......
Mr. Subodh P. Shah, Advocate for the petitioners
Mr. R. R. Manti, Advocate for respondent sole
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 15th MARCH, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard learned
advocate for the parties finally with consent.
2. Regular civil suit No.5 of 2005 has been instituted by
present respondent - plaintiff initially seeking injunction in
respect of property referred to in the plaint, which subsequently
underwent change under the amendment sought. An
amendment application had been moved at Exhibit-15 by the
plaintiff and amendments were sought in paragraph No.3 with
respect to description of suit property as well as one more
paragraph was sought to be added as paragraph No.3A.
3. Learned advocate for the petitioner submits that while
passing the impugned order, the learned judge had been in
oblivion of the amendment sought under paragraph No.4 under
application Exhibit-15 by adding paragraph No.3A. According to
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learned advocate, the contents of the same tantamount to
withdrawal of admission given in paragraph No.3 of the original
plaint. In such a case, a grave prejudice would be caused to the
defendants, wherein admission appearing accepting title of the
defendants over the property, by the plaintiff is sought to be
withdrawn. According to learned advocate since that would
prejudice their accrued rights, the impugned order has been
rendered unsustainable in law and in fact. He, in order to
support his submissions purports to place reliance on judgment
in case of "Damu Maruti Dadhe and Another V. Limba Maruti Dadhe and
Others" reported in 2011 (5) Mh.L.J. 738 as well as in the case of
"Tertuliano Renato De Silva and Another V. Franscisco Lourenco Bettencourt De
Silva" reported in 2002 (2) Mh.L.J. 812.
4. On the other hand, Mr. Mantri, learned advocate appearing
for the respondent - plaintiff submits that hearing of the suit is
getting procrastinated under successive applications being filed
before the trial court as well as by filing writ petitions in this
court. He refers to quite a few writ petitions and orders therein.
He submits that even otherwise no prejudice can be said to have
been caused to the defendants, for the reason that, such an
eventuality has been taken care of by procedural law,
particularly section 105 of the Civil Procedure Code. In his
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submission, therefore, it is not a case where the matter requires
indulgence of this court by invoking extraordinary powers under
the Constitution. He further contends that this is not the first
round wherein this application for amendment is concerned
before this court. He submits that earlier on there had been a
writ petition against rejection of a review of an order passed by
the trial court on amendment application. In that round it had
not been the submission of the other side with reference to
paragraph No.4 and amendment by addition of paragraph No.3A
to plaint and that it had not been argued. According to him, may
be the same has been resisted in the say, however, one cannot
be certain that any submissions have been advanced over the
same. He, therefore, submits that taking overall stock of the
situation and having regard to section 105 of the Civil Procedure
Code, it cannot be said to be a case wherein serious prejudice
can be said to have been caused to the defendants.
5. Perusal of the impugned order, particularly reasons, appear
to dwell upon other aspects than the amendment as sought
under paragraph No.4 by addition of paragraph No.3A to the
plaint. In view of the submissions, those have been advanced on
behalf of the petitioners that prejudice is likely to be caused to
the defendants and that there had been no submission on that
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count according to respondents and the impugned order does
not reflect upon the same.
6. There does not appear to be serious objection as far as
amendment to plaint with regard to amendment to paragraph
No.3 of the plaint is concerned.
7. As such, there appears to be dispute to the extent of
paragraph No.4 of amendment application.
8.
In my estimate, the situation can be resolved by remitting
the matter for re-consideration.
9. As such, impugned order dated 29th December, 2014 on
Exhibit-15 passed by civil judge junior division, Nandurbar is set
aside. Application Exhibit-15 is restored. While hearing the case
on Exhibit-15, the trial court may have regard to above. The trial
court may decide on the application as expeditiously as possible,
preferably within a period of four weeks from the date of receipt
of writ of this order.
10. Writ petition accordingly stands allowed. Rule is made
absolute in aforesaid terms.
[SUNIL P. DESHMUKH, J.]
drp/wp7025-15
