Bombay High Court
Ashwin Subhashrao Nalbale vs Prakash Vasantrao Kulkarni And ... on 8 August, 2017
Bench: S.P. Deshmukh
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2420 OF 2016
Ashwin s/o Subhashrao Nalbale PETITIONER
Age - 35 years, Occ - Education,
R/o Lacture Colony, Ahmedpur
Taluka - Ahmedpur, District - Latur
VERSUS
1. Prakash s/o Vasantrao Kulkarni RESPONDENTS
Age - 40 years, Occ - Service
R/o Nanded, Taluka and District - Nanded
2. Shrikant s/o Kanheyalal Bhutada
Age - 48 yeas, Occ - Agriculture
R/o Marwadi Galli, Ahmedpur
Taluka - Ahmedpur, District - Latur
3. Gangabai w/o Subhashrao Nalbale
Age - 60 years, Occ - Household
R/o Lacture Colony, Ahmedpur
Taluka - Ahmedpur, District - Latur
4. Balaji s/o Narayanrao Nakhate
Age - 40 years, Occ - Business,
R/o Phule Nagar, Ahmedpur
Taluka - Ahmedpur, District - Latur
5. Babarao s/o Pundlikrao Lahane,
Age - 63 years, Occ - Nil
R/o Bank Colony, Ahmedpur
Taluka - Ahmedpur, District - Latur
6. Sau. Shivnanda w/o Angad Mundhe,
Age - 36 years, Occ - Household
R/o Hagdal, Taluka - Ahmedpur
District - Latur
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7. Venkat s/o Dattarao Gutte,
Age - 45 years, Occ - Business,
R/o Near ITI College, Ahmedpur
Taluka - Ahmedpur, District - Latur
8. Sheshikala w/o Maroti Surnar
Age - 40 years, Occ - Household
R/o Sunegaon (Sangvi) Taluka - Ahmedpur
District - Latur
9. Shripati s/o Digamber Rathod
Age - 41 years, Occ - Agriculture
R/o Hagdal, Taluka - Ahmedpur
District - Latur
10. Nivrati s/o Tukaram Mullamwad
Age - 42 years, Occ - Agriculture & Service
R/o Ahmedpur, Taluka - Ahmedpur
District - Latur
11. Kusumbai w/o Ramdas Gutte,
Age - 45 years, Occ - Household
R/o Devkara, Taluka - Ahmedpur
District - Latur
12. Venkati s/o Nivrati Dahiphale,
Age - 50 years, Occ - Agriculture
R/o Kolwadi Post Kingaon,
Taluka - Ahmedpur, District - Latur
13. Prakash s/o Narayan Wakde
Age - 40 years, Occ - Agriculture
R/o Dhanora (kh), Post - Tirth
Taluka - Ahmedpur, District - Latur
14. Sopan s/o Tukaram Mulmwad
Age - 45 years, Occ - Private Service
R/o Ahmedpur, Taluka - Ahmedpur
District - Latur
15. Varsha d/o Laxmi Mundhe,
Age - 32 years, Occ - Service
R/o Ahmedpur, Taluka - Ahmedpur
District - Latur
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16. Mangalabai w/o Pundlikrao Darade
Age - 57 years, Occ - Household
R/o Ahmedpur, Taluka - Ahmedpur
District - Latur
17. Muktabai w/o Pralhad Kendre
Age - 36 years, Occ - Household
R/o Ahmedpur, Taluka - Ahmedpur
District - Latur
18. Raubai w/o Tukaram Gutte
Age - 70 years, Occ - Household
R/o Ahmedpur, Taluka - Ahmedpur
District - Latur
19. Jalba s/o Kerba Surnar
Age - 45 years, Occ - Business
R/o Ramteerth, Taluka - Loha
District - Nanded
20. Pradip s/o Santramji Rabbewar,
Age - 48 years, Occ - Business,
R/o Ahmedpur, Taluka - Ahmedpur
District - Latur
21. Madhav s/o Pandurang Gore,
Age - 44 years, Occ - Business
R/o Ahmedpur, Taluka - Ahmedpur
District - Latur
.......
Mr. N. D. Kendre, Advocate for the petitioner
Mr. S. B. Madde, Advocate for respondents No. 1 and 2
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 8th AUGUST, 2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally with
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consent of learned advocates for appearing parties.
2. Petitioner, who is defendant No. 4 in Regular Civil Suit No.
42 of 2013 (Old No. 245 of 2008) is before the court purporting
to have been aggrieved by order dated 19 th January, 2016
passed on Exhibit-213 in aforesaid suit.
3. Aforesaid suit has been filed for partition and possession
by present respondents No. 1 and 2 as plaintiffs in respect of
properties referred to therein. Exhibit-213 is an application
moved by present respondents No. 1 and 2 for amendment to
plaint.
4. Said application had been resisted by defendants, including
present petitioner. The primary resistance was on the count that
since trial has commenced, having regard to proviso to Order VI,
Rule 17 of the Civil Procedure Code, amendment could not have
been allowed. In support of their contentions, they referred to a
judgment of the Supreme Court in the case of "Chander Kanta
Bansal V.s Rajinder Singh Anand" reported in AIR 2008 SC 2234.
5. Learned advocate for the petitioner vehemently submits
that plaintiffs have completed their evidence and their witnesses
were also cross-examined and now defendants are giving their
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evidence. While suit has reached such a stage, an application
Exhibit-213 purportedly came to be moved by respondents No. 1
and 2 for amendment to the plaint alleging that it was
necessitated as present petitioner had surreptitiously without
letting respondents No.1 and 2 know, has unauthorizedly and
illegally executed transfer deeds in favour of defendants No. 14
to 22.
6. Trial court has observed that during the trial, an application
had been moved by respondents No. 14 to 21 for adding
themselves as defendants and the same had been allowed after
hearing the parties. While allowing said application, the court
had allowed respondents No. 1 and 2 to move suitable
application for amendment in view of addition of defendants No.
14 to 21. Resisting defendants had inter alia argued that if the
amendment is allowed, nature of suit may undergo change by
addition of reliefs claiming transactions to be null and void and
further that application suffers laches and also contending that
lot of reliefs sought are barred by law of limitation.
7. Trial court has, however, considered that there have been
pleadings in the application that transactions and the concerned
construction were during pendency of suit and at the threshold
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at the stage of application it cannot be said that reliefs would be
time barred. Trial court, however, in the larger interest of justice
allowed application after taking into account objections and the
resistance of present petitioner had found amendment to be
proper and may have a role to play in the matter and would
avoid multiplicity of proceedings and nature of suit would not get
changed in the process.
8. Learned advocate for the petitioner during the course of
hearing has referred to and relied on case of "Alkapuri Co-operative
Housing Society Ltd., V/s Jayantibhai Naginbhai (Deceased) through LRs"
reported in AIR 2009 SC 1948 putting particular emphasis on
paragraphs No. 15 and 16 therein. Looking at the phraseology
appearing under those two paragraphs in the facts and
circumstances of the case, appear to be more related to
respondents No. 1 and 2 rather than the petitioner.
9. In any case, discretion has been exercised by trial court in
favour of amendment sought and application having been
granted for addition of parties by respondents No. 14 to 21, in
the circumstances, it is not the case where it can be said that
exercise of discretion has been not in accordance with judicial
principles. No fault, thus, can be found with the order impugned.
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10. Writ petition, as such, is not being entertained and is
dismissed. Rule stands discharged.
[SUNIL P. DESHMUKH, J.]
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