Sudhakar Babanrao Tekawade vs Najamabee Yusuf Shaikh And ...
2017 Latest Caselaw 5940 Bom

                                         1                   WP-8063.16.doc



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


                      WRIT PETITION NO. 8063 OF 2016


          Shri Sudhakar Babanrao Tekawade
          Age : 40 years, occupation : Labour,
          R/o : Komti Galli, Newasa Khurd,     ... Petitioner/
          Tq. Newasa, Dist. Ahmednagar             Orig. Plaintiff

                  versus

 1.       Najamabee Yusuf Shaikh,
          Age : 50 years, occup. Household,
          R/o : Vadar Galli, Near Komti Galli,
          Newasa Khurd, Tq. Newasa,
          Dist. Ahmednagar

 2.       Yusuf Fattu Shaikh,
          Age : 57 years, occup. Business,        ... Respondents/
          R/o as above                                Orig. Defendants

                 -----
          Mr. Vijay B. Jagtap, Advocate for petitioner
          Mr. Z. M. Pathan, Advocate for respondents



                               CORAM :       SUNIL P. DESHMUKH, J.

                               DATE :        14th August, 2017


 ORAL JUDGMENT:

1. Rule. Rule made returnable forthwith. Heard learned counsel

for petitioner and learned counsel for respondents finally by

consent.

2 WP-8063.16.doc

2. Petitioner - original plaintiff challenges order dated 02-05-

2016 under which his application Exhibit - 27 seeking amendments

to the plaint in special civil suit no. 11 of 2015 has been rejected by

civil judge, senior division, Newasa.

3. Learned counsel submits that the impugned order suffers

under parochial view taken by the court while considering the

application Exhibit - 27 for amendments when the law as it would

appear shows, a liberal view is to be generally adopted in the cases

of amendments.

4. He submits, while boundaries have been specified in the

agreements for sale yet, the learned judge has overlooked the

same and has observed that no boundaries are given in the

agreements for sale. He further contends that it is on too technical

ground the application has been refused to be granted viz. the

same has been moved after framing of issues and the matter had

been posted for evidence. He submits, as a matter of fact, the

petitioner as yet has not been examined himself in the court. As

such, it cannot be said that the trial has in strict sense

commenced. He, therefore, seeks indulgence and prays to allow

writ petition.

5. Countering aforesaid submissions, Mr. Pathan, appearing on

behalf of respondents submits that there is no due diligence

3 WP-8063.16.doc

shown by petitioner in filing the application Exhibit - 27 as neither

after notice issued seeking specific performance of agreement nor

after written statement has been filed till the matter had been ripe

for trial, the application had been moved. He submits that since

the stage of trial had commenced, the court had approached the

matter in accordance with provisions as would be applicable

particularly having regard to proviso to Order VI, rule 17 of the

Code of Civil Procedure, 1908

6. He further purports to contend that there is no specific

reference to the areas of the suit properties in the agreements of

sale, yet the same may find place in the plaint. He, therefore,

submits that it is not a fit case whereunder discretionary powers of

this court are required to be exercised.

7. I have heard learned counsel as aforesaid. One may have to

give regard to that while the agreements for sale which have been

placed on record as appended to writ petition, to quite a large

extent, appear to refer to boundaries of the properties, the

observation of the court about them not being appearing in the

agreements for sale would not be proper observation and further

having regard to that the evidence is yet to commence and

application has been moved before its communication, it does not

appear to be a case wherein stricter approach is required to be

taken.

4 WP-8063.16.doc

8. In the circumstances, it is deemed it appropriate and in the

interest of the parties to allow application Exhibit - 27, keeping in

view that in the matters of amendments, the court may adopt a

liberal approach.

9. As such, writ petition stands allowed. The impugned order

02-05-2016 passed by civil judge, senior division, Newasa,

rejecting petitioner's application Exhibit - 27 seeking amendments

to the plaint in special civil suit no. 11 of 2015 is set aside.

Application Exhibit - 27 stands allowed.

10. Rule made absolute in aforesaid terms. Writ petition stands

disposed of.

SUNIL P. DESHMUKH, JUDGE

pnd