Bombay High Court
Madhukar Maruti Devsatwar vs Vinayak Maruti Devsatwar And ... on 13 December, 2017
Bench: S.P. Deshmukh
1 WP NO.1350 OF 2014
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1350 OF 2014
Madhukar s/o Maruti Devsatwar,
Age 63 years, Occupation: Agri.,
R/o. Nalegaon, Ta. Chakur,
Dist. Latur.
...Petitioner
Versus
1. Vinayak s/o Maruti Devsatwar
Age: 61 years, Occ: Agri. & Contractorship,
R/o Nalegaon Ta.Chakur,
Dist. Latur.
2. Anil s/o Vinayak Devsatwar,
Age 37 years, Occ: Agri. & Business,
R/o. Nalegaon Tq. Chakur,
Dist. Latur.
3. Sunil s/o Vinayak Devsatwar,
Age 35 years, Occ: Agri. & Business,
R/o Nalegaon Ta. Chakur,
Dist. Latur.
4. Nagnath s/o Maruti Devsatwar,
Age 58 years, Occ: Agri. & Business,
R/o. Nalegaon Ta. Chakur,
Dist. Latur.
...Respondents
...
Mr. Annasaheb S.Kadam, Advocate for the petitioner.
Mr. A.N.Kakade, Advocate for respondent nos. 1 to 3.
...
CORAM: SUNIL P. DESHMUKH, J.
DATE : December 13th, 2017
***
2 WP NO.1350 OF 2014
ORAL JUDGMENT:
1. Rule. Rule made returnable forthwith.
2. Heard learned Counsel for the parties finally by
consent.
3. Original Plaintiff - Petitioner before this Court, is
aggrieved by order dated 7.12.2013 passed by Civil Judge,
Junior Division, Chakur, whereunder, Exh.76 in RCS
No.77/2005, filed by the present petitioner seeking permission
to withdraw said suit with liberty to file the fresh suit, claiming
his entitlement to certain portion of the land based on some
factual aspects, preceding the institution of the suit, has been
rejected.
4. The suit had been instituted in the year 2005,
making certain averments in the plaint in regard to accretion
and deletion in respect of land holding of plaintiff, and also
subsequent events which, according to the plaintiff, were not
correctly recorded, and averments appeared rather not in
keeping with factual position under some misconception of the
lawyer and, as such, after issues were framed, and before
3 WP NO.1350 OF 2014
evidence had been commenced, an application had been filed
for amendment of plaint, making effort to bring to the fore
correct position.
5. According to learned Counsel for the petitioner,
the application for amendment had been rejected for all the
erroneous reasons, and said rejection had hampered the
interest of the plaintiff in the litigation, he had chosen recourse
to withdraw the suit pursuant to Order XXIII of the Code of
Civil Procedure, with liberty to file a fresh suit, as provided.
6. It appears to be a case of petitioner-plaintiff that he
is entitled to land holding for 5 Hectare, 47 Are and a well,
and same having not been depicted under the averments in the
plaint, and as the attempt to seek amendment to the suit by
an application under Order VI, Rule 17 of the Code, trying to
make out his case, resulted in rejection, the suit as such being
rendered incapable of carrying forward the purpose for which
the litigation had been instituted by the petitioner. In the
circumstances, petitioner had no alternative, but to seek
recourse to Order XXIII of the Code under application - Exhibit
76, however, the same had also been rejected, and had met
with failure for all erroneous reasons.
4 WP NO.1350 OF 2014
7. Learned Counsel for the petitioner submits that for
almost the same reasons which went into rejection of earlier
amendment application, present application - Exhibit 76 has
been rejected. He submits that in the technical approach by
the Court, the petitioner's quest for justice has taken a
backseat and has been almost lost.
8. Learned Counsel for the respondents, however,
contends that both the applications; earlier amendment
application as well as application pursuant to Order XXIII of the
Code, have been rejected for all right reasons. While
amendment was being sought, the earlier litigation in respect of
the well had not been referred to at all, and as such, the Court
had considered the approach of the petitioner being not clean.
He further submits that the defendants' defence, in the process,
would have weakened in its efficacy if such an amendment to
the suit would have been allowed. He submits that even the
application moved for withdrawal of the suit seeking liberty to
file a fresh suit would not be in consonance with the
requirements under the Rules and Order XXIII of the Code. He
submits that, as adjudged by the trial Court, it would not be
said that the suit can be suffering from any formal defect, or it
5 WP NO.1350 OF 2014
may fail for reason of some formal defect, or there are
sufficient grounds for allowing the plaintiff to institute a fresh
suit for the subject matter of the suit, or part of a claim.
9. Having regard to the arguments on either side, and
on perusal of the impugned decision of the trial Court, it
appears that the trial Court had been rather cursory in its
approach since the order does not discuss at all as to what were
the defects, and what were the deficiencies which had crept in,
in the earlier averments in the plaint. In such a case, a Court
should approach the matter, giving reasons while dealing with
contentions advanced, wherein a person feels that his complete
claim in litigation is not being represented, and the same is
sought to be cured, either by amendment, or by withdrawal of
suit with liberty to file a fresh suit.
10. In the present factual scenario, while the plaintiff
claims a larger area to his entitlement along with a well, giving
reasons therefor, and giving account of events, it does not
appear that it has received its due while the applications were
being considered. The Court appears to have been
overwhelmed more by the technicalities since the deficiencies
were not removed before the issues were framed, or for that
6 WP NO.1350 OF 2014
matter, the earlier litigation had not been referred to.
11. The matter, admittedly, is from mofussil area of a
backward region. The petitioner, primarily, appears to be an
agriculturist by occupation, and does not appear to have
realized the mistakes occurring earlier. In the circumstances,
while he had made attempts to rectify the deficiencies by
application seeking amendment, and present application
seeking withdrawal of suit, the technical blockades are
undesirable to be raised which would defeat the very purpose
for which he is making an approach to the Court. In the
circumstances, the proper approach would be, if the Court
considers that inconvenience is being caused to the other side,
to mend it by imposing costs.
12. The impugned order is set aside. The Application
Exh.76 in RCS No.77/2005 stands allowed with costs of
Rs.2,500/-. The Writ Petition is allowed.
(SUNIL P. DESHMUKH)
JUDGE
...
AGP/1350-14wp
