Shri. Shatrugna S/O Shankar Munde ... vs Zonal Officer (Western Zone), ...
2016 Latest Caselaw 5848 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH, NAGPUR




                                                       
                        Writ Petition No.364 of 2016

    1. Shri Shatrugna s/o Shankar Munde,




                                                      
       Aged about 69 years,
       Occupation - Business,
       R/o Siddartha Wadi, Akola,




                                        
       Tq. and Distt. Akola.
                             
    2. Shri Deepak s/o Bhimrao Khose,
       Aged about 45 years,
                            
       Occupation - Business,
       R/o Hariharpeth,
       Akola,
       Tq. and Distt. Akola.                           ... Petitioners/
      


                                                       Ori. Plaintiffs on RA
   



         Versus

    1. Zonal Officer (Western Zone),





       Akola Municipal Corporation.

    2. Akola Municipal Corporation,
       Akola, through its Commissioner,





       Akola.                                          ... Respondents/
                                                       Ori. Defendants on RA




    ::: Uploaded on - 06/10/2016                       ::: Downloaded on - 07/10/2016 00:48:06 :::
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    Shri S.A. Mohta, Advocate for Petitioners.
    Shri Sameer Sohoni, Advocate for Respondent No.2.




                                                            
                 Coram : R.K. Deshpande, J.

th Dated : 4 October, 2016

Oral Judgment :

1. Rule, made returnable forthwith. Heard finally by consent

of the learned counsels appearing for the parties.

2. The Trial Court, by the impugned order dated 13-1-2016

passed below Exhibit 16 in Regular Civil Suit No.420 of 2015,

has rejected the application for amendment of plaint. It is not the

finding recorded by the Trial Court that the amendment is not

necessary for deciding the real controversy involved in the

matter. After going through the averments made in the plaint as

well as in the application for amendment of plaint, it is not

understood as to how the amendment would change the nature of

the suit filed.

3. By way of amendment, the plaintiffs are challenging the

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notices of demolition issued by the Municipal Corporation. The

first prayer in the plaint is for injunction restraining the

defendants from causing damage to the suit property. The

another prayer in the plaint is to restrain the defendants from

acting upon the notices dated 30-11-2015, 1-12-2015 and

3-12-2015. After going through the averments in plaint and the

application for amendment, I find that the amendment proposed is

necessary for deciding the real controversy involved in the

matter. The Trial Court ought to have allowed the application for

amendment, which does not affect in any manner the objections

raised by the defendants regarding bar of jurisdiction of the Civil

court to entertain, try and decide the suit, as contemplated by

Section 433A of the Maharashtra Municipal Corporations Act,

1949.

4. In the result, the petition is allowed. The order

dated 13-1-2016 passed by the Trial Court below Exhibit 16 in

Regular Civil Suit No.420 of 2015, is hereby quashed and set

aside. The application for amendment of plaint is allowed.

Necessary amendment be carried out within a period of two

wp364.16.odt

weeks from the date of first appearance of the parties before the

Trial Court. It is informed that the matter is already fixed on

6-10-2016. It is made clear that this Court has not gone into the

question of grant or rejection of temporary injunction, which is

the subject-matter of separate application, which is pending

before the lower Appellate Court.

5. Rule is made absolute in above terms. No order as to

costs.

Judge.

Lanjewar

wp364.16.odt

CERTIFICATE

"I certify that this Judgment uploaded is a true and

correct copy of original signed Judgment."

Uploaded by : P.D. Lanjewar, PS

Uploaded on : 6-10-2016