Bombay High Court
Anjali Kundalik Samse vs Dattu Naval Samse And Others on 12 December, 2017
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6771 OF 2014
Anjali w/o Kundalik Samse,
Age-39 years, Occu-Agriculturist,
R/o Sonijawala, Tal.Kaij,
Dist. Beed. - PETITIONER
VERSUS
1. Dattu s/o Naval Samse,
Age-29 years, Occu-Agriculturist,
2. Sushilabai w/o Naval Samse,
Age-44 years, Occu-Household,
3. Somnath s/o Narayan Samse,
Age-59 years, Occu-Agriculturist,
4. Anurath s/o Somnath Samse,
Age-29 years, Occu-Agriculturist,
5. Sambhu s/o Narayan Samse,
Age-46 years, Occu-Agriculturist,
6. Sunanda w/o Sambhu Samse,
Age-41 years, Occu-Agriculturist,
All R/o Sonijawala, Tq.Kaij,
Dist. Beed - RESPONDENTS
Mr.B.R.Kedar, Advocate for the petitioner.
Mr.B.B.Bhise h/f Mr.D.J.Choudhary, Advocate for respondent Nos. 1
to 6.
CORAM : RAVINDRA V. GHUGE, J.)
DATE : 12/12/2017
khs/DEC. 2017/6771
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. By an ad-interim order dated 08/08/2014, this Court has
granted ad-interim relief to the petitioner in terms of prayer clause
"C", which reads as under :-
"During pendency of the present writ petition, the proceeding in
RCS No.101/2010, pending on the file of Ld. 3 rd Joint C.J.J.D.
Kaij, may kindly be stayed."
3. I have considered the strenuous submissions of the learned
Advocates for the respective sides.
4. The contentions of the petitioner are that she has purchased 2
portions of land in Survey No.38. The map correctly indicates the 2
portions and its boundaries which are mentioned on the internal
page No.5 of the plaint, copy of which is placed on record. It is
pointed out that boundaries of one piece of land admeasuring 1 acre
and 22 gunthas has been correctly mentioned. The description and
the size of the 2nd portion of land admeasuring 1 acre 10 gunthas is
not mentioned, though the map is on record to indicate the correct
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picture.
5. In order to ensure that inadvertent lack of pleadings should not
affect the result of the suit, the petitioner/plaintiff preferred
application Exh.51 seeking leave of the Court to carry out the
amendment. By the impugned order dated 19/06/2014, the Trial
Court has rejected Exh.51.
6. Learned Advocate for the respondents/defendants submits that
the boundaries of the 2nd portion of the land are also not mentioned
in the sale deed by which the plaintiff has purchased the said land.
It is not disputed that the map forms an integral part of the plaint
identifying the 2 portions of the land correctly. It is, however,
contended that sale deeds are of 17/07/2007 and the suit has been
filed in 2010. The amendment is sought on 03/12/2013 and hence
considering the effect of Order 6 Rule 17 and the proviso introduced
thereunder by the amendment of 2002 to the CPC, it would not
permit the amendment at this stage.
7. I find from the respective pleadings and contentions of the
parties that the plaintiff desires to mention the correct boundaries
which are missing in so far as the 2nd portion of the suit land
khs/DEC. 2017/6771
admeasuring 1 acre 10 guntha is concerned. The map happens to be
the integral part of the plaint. Even if the details of the boundaries
are not mentioned in so far as land portion is concerned, the map
on record would surely place the fact before the Trial Court.
8. What is sought by the plaintiff through Exh.51 is to correct the
mistake so as to ensure that the pleadings are in tune with the map.
The second request made in Exh.51 is with regard to a subsequent
event that has occurred on 18/11/2013 by which 2 persons namely
Vishnu Mahadev Ghadge and Pundlik Narayan, who are said to have
purchased the land, have carried out a correction with the Sub
Registrar, Kaij with regard to the said boundaries. This aspect is
sought to be placed on record.
9. It is undisputed that neither is the plaintiff introducing a new
cause of action, nor is the plaintiff introducing a new portion of land
as the suit property. The issues have been cast in the matter,
though recording of oral evidence has not commenced. I find that if
the amendment, which is of a technical character, is permitted, the
pleadings would be properly set out before the Trial Court and who
would be better assisted, since the map correctly indicating the suit
properties, is already on record. Nevertheless, since the plaintiff has
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noticed the mistake after the issues have been cast, costs can be
imposed on the plaintiff so as to compensate the respondents for the
hardships suffered by them.
10. Considering the above, this petition is allowed. The impugned
order dated 19/06/2014 is quashed and set aside and application
Exh.51 stands allowed subject to the petitioner depositing costs of
Rs.3,000/- before the Trial Court within a period of 6 weeks from
today. The said costs would be withdrawn by the 6 respondents
herein in equal proportions.
11. The petitioner shall carry out the amendment within 6 weeks
from today. If the defendants desire to make further clarification,
they would be at liberty to file an additional written statement with
regard to the amended portion.
12. If the costs are not deposited within the time frame, this order
shall stand recalled and application Exh.51 shall then stand rejected.
13. Rule is made absolute in the above terms.
( RAVINDRA V. GHUGE, J.)
khs/DEC. 2017/6771
