Bombay High Court
Bhausaheb Ganpat Kasane vs Gorakh Ganpat Kasane And Others on 8 August, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11721 OF 2016
Bhausaheb s/o Ganpat Kasane PETITIONER
Age - Major, Occ - Agriculture
R/o Manjari, Taluka - Gangapur
District - Aurangabad
VERSUS
1. Gorakh s/o Ganpat Kasane RESPONDENTS
Age - Major, Occ - Agriculture
R/o Manjari, Taluka - Gangapur
District - Aurangabad
2. Kailas s/o Gorakhnath Kasane
Age - Major, Occ - Agriculture
R/o Manjari, Taluka - Gangapur
District - Aurangabad
3. Vilas s/o Gorakhnath Kasane
Age - Major, Occ - Agriculture
R/o Manjari, Taluka - Gangapur
District - Aurangabad
4. Bhimabai w/o Gorakh Kasane
Age - 55 years, Occ - Household
R/o Manjari, Taluka - Gangapur
District - Aurangabad
5. Nirmala w/o Rajendra Bahirat
Age - Major, Occ - Agriculture
R/o Ghogargaon, Taluka - Newasa
District - Ahmednagar
6. Shamabai w/o Uttamrao Deshmukh
(Since deceased through her LR)
Sanjay Uttamrao Deshmukh
Age - 40 years, Occ - Agriculture
R/o Yeola, District - Nashik
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7. Sumanbai w/o Raosaheb Kokane
Age - 62 years, Occ - Household
R/o Taklibhan, Taluka - Shrirampur
District - Ahmednagar
8. Heerabai w/o Chaburao Kotme
Age - 60 years, Occ - Household
R/o Kotamgaon, Taluka - Yeola
District - Nashik
9. Damuanna s/o Ganpat Kasane
Age - Major, Occ - Agriculture
R/o Manjari, Taluka - Gangapur
District - Aurangabad
.......
Mr. Anil S. Bajaj, Advocate for the petitioner
Mr. K. B. Jadhav h/f Mr. S. B. Bhapkar, Advocate for R-2 to 5
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 8th AUGUST, 2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard learned
advocates for the appearing parties finally by consent.
2. Writ petition is moved against an order rejecting
amendment application Exhibit-116 filed in Regular Civil Suit No.
102 of 2002 dated 15th June, 2016. Petitioner, who is plaintiff in
the suit, refers to that while his claim in the suit is confined to
area of erstwhile survey No. 155/02 admeasruing 16 Acres, 25
Guntha, now comprising land gut No. 120/02 with some other
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land, admeasuring 37 Acres, 25 Guntha. While petitioner is
coming from mufossil area and is primarily an agriculturist, did
not realize that such a description may not bring to the fore his
precise grievance, while during the pendency of suit, it was
realized, he had applied for amendment describing property
more particularly by giving boundaries.
3. Learned advocate for the petitioner submits that the
application has been rejected solely with reference to proviso of
amended provisions of Order VI, Rule 17 of the Civil Procedure
Code, whereunder a party is required to show due diligence.
Learned advocate for the petitioner submits that it is largely due
to illiteracy prevailing in mufossil area, implications of non
reference to particulars had not been realized earlier.
4. On the other hand, learned advocate Mr. K. B. Jadhav
holding for Mr. Bhapkar, appearing for respondents, submits that
the application has been made after commencement of trial and
the proviso requires that in the absence of due diligence, such
amendment may not be possible. He submits that suit has been
instituted in 2002 while application for amendment has been
moved in 2016. He submits that going by provisions of law, no
fault can be found with the order passed by trial court. Learned
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advocate further refers to that trial court has rightly considered
that right to seek amendment has been limited under the
amended provisions. He, therefore, urges that no indulgence be
given to the petitioner.
5. Though learned advocate for the respondents has argued
as aforesaid, learned advocate for the petitioner has referred to
a decision of the Supreme Court in the case of "Usha Devi V/s
Rijwan Ahmad and Others" reported in AIR 2008 SC 1147. Head note (A)
of said citation reads as under:
" (A) Civil P.C. (5 of 2908), O.6 R.17 - Amendment of plaint -
Correction of description of suit property - Plaintiff not diligent - Did
not seek amendment at early stage though wrong description was
pointedly brought up by defendants not only in written statement but also
in course of proceedings - Proposed amendment necessary for brining to
fore real controversy between parties - Supreme Court allowed prayer
for amendment in view of decision in 2005 (13) SCC 89 - Proposed
amendment allowed subject to cost of Rs.10,000/- as defendants made to
suffer injunction for a long time with regard to their own property
because of said wrong description. "
6. Looking at that in the present matter respondents do not
dispute claim of the petitioner in the suit is with reference to
erstwhile survey No. 155/02 admeasuring 16 Acre, 25 Guntha
comprised in and being a part of present gut No. 120/02
admeasuring 37 Acre, 25 Guntha and also looking at the other
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surrounding circumstances, viz., land being situated in mufossil
area and petitioner as well appears to be agriculturist, looking at
the larger interest, as had been considered by the Supreme
Court in aforesaid judgment, situation can be allowed to be
mended by imposing costs on the petitioner.
7. In view of aforesaid, writ petition stands allowed.
Impugned judgment and order dated 15th June, 2016 on Exhibit-
116 in Regular Civil Suit No. 102 of 2002 passed by Joint Civil
Judge, Senior Division, Gangapur stands set aside. Application
Exhibit-116 stands allowed, subject to payment of costs of
Rs.15,000/- to be paid to present respondents. Deposit of costs
within a period of six weeks from today is a condition precedent
for deeming the application Exhibit-116 being allowed. Costs
accordingly be deposited within aforesaid period in trial court for
its onward equitable disbursal to present respondents. Rule is
made absolute in aforesaid terms.
[SUNIL P. DESHMUKH, J.]
drp/wp11721-16
