Bombay High Court
Smt. Khadija Abdul Wahid Sayyed ... vs Abdul Rashid Gafoor Sayyed on 16 August, 2017
Bench: M.S. Sanklecha
(923) WP-6796-17
Sarnobat
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6796 OF 2017
Smt. Khadija Abdul Wahid Sayyed & Ors. .. Petitioners
Vs.
Abdul Rashid Gafoor Sayyed. .. Respondent
Mr. Chintaman Shah, Advocate for the Petitioners.
Mr. Omar Khaiyam Shaikh, Advocate for the Respondent.
CORAM : M. S. SANKLECHA, J.
DATE : 16th AUGUST, 2017.
P. C. :
1. Moved for urgent relief.
2. This petition challenges the order dated 4th March, 2017
passed by the Joint Civil Judge, Jr. Division, Bhiwandi. By this impugned
order the respondent's application for amendment of plaint under Order 6
Rule 17 of the Code of Civil Procedure was partially allowed.
3. The petitioners' grievance to the impugned order is that, the
amendment which allowed the addition of the word 'not' in the 2 nd sentence
of paragraph 16 of the plaint causes prejudice to the petitioners. This for
the reason that an admission on the part of the plaintiffs (respondent
herein ) to the benefit of the petitioners is being taken away by the
proposed amendment. .
3. It is an admitted position before me that the amendment to the
(923) WP-6796-17
plaint was moved before commencement of the trial. The paragraph 16 of
the plaint as filed, from the second sentence thereof reads as under :-
".......The plaintiff submits that however, by deleting the name
of the plaintiff, the defendants have become the owners of the
suit land only on the basis of the mutation entry. Under these
circumstances, the plaintiff is absolute owner and in
possession of the suit land and the suit house and the
defendants have absolutely no right, title and interest in the
suit land and the suit house."
4. The amendment allowed is the addition of the word "not"
between the words "the defendants have" and "become the owners of the
suit land". This addition of the word "not" submits the petitioner takes
away an admission. This is clear case of typographical error/oversight i.e.
omitting to type the word "not" in the second sentence of paragraph 16 of
the plaint. This is evident from the 3 rd sentence of paragraph 16 as filed,
which clearly asserts that the plaintiff i.e. respondent herein is the absolute
owner and in possession of the suit land and the defendant has no right,
title and interest in the suit property. In view of above, the amendment
would not amount to withdrawal of an admission.
5. Therefore, in the aforesaid facts, allowing the amendment in
the present facts by the impugned order in the 2 nd sentence in paragraph
16 as filed by the petitioners is a possible view. Thus no occasion arises to
exercise my supervisory jurisdiction under Article 227 of the Constitution
of India.
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6. Accordingly, petition is dismissed. No order as to costs.
[ M. S. SANKLECHA, J. ]
