Babarao Ramrao Deshmukh vs Vithal Kondiba Raut And Anothers
2017 Latest Caselaw 89 Bom

                                                         Writ Petition No.130/2016
                                          1


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


                         WRIT PETITION NO.130 OF 2016



 Babarao s/o Ramrao Deshmukh,
 Age 42 years, Occu. Service,
 R/o Takli (Kumbhakarn),
 Taluka and District Parbhani                      ...      PETITIONER

          VERSUS

 1)       Vithal s/o Kondiba Raut,
          Age 46 years, Occu. Agriculture,
          R/o Takli (Kumbhakarn),
          Taluka and District Parbhani

 2)       Shivaji s/o Kondiba Raut,
          Age 44 years, Occu. Agriculture
          R/o Takli (Kumbhakarn),
          Taluka and District Parbhani             ...      RESPONDENTS

                                .....
 Shri P.S. Paranjape, Advocate for petitioner
 Shri S.S. Kulkarni, Advocate for respondents
                                .....


                                 CORAM:       S. B. SHUKRE, J.

                                 DATED:       27th February, 2017.


 ORAL JUDGMENT :


 1.               Heard.       Rule.   Rule made returnable forthwith and

heard finally by consent of learned counsel for the parties.

Writ Petition No.130/2016

2. On going through the amendment application, I find

that the amendment has been sought by the respondents on

vague grounds. The suit filed by the respondents against the

petitioner is based upon a registered sale deed and it is in

respect of Gat No.502. It is the contention of the respondents

that, during pendency of the suit, the respondents got knowledge

about execution of some exchange deed by the petitioners in

favour of some purchasers, wherein, the correct Gat number of

the land has been mentioned and it is Gat No.501. Now, on the

basis of this exchange deed, the respondents want to say that,

actually, the land owned and possessed by the petitioner is Gat

No.502 and not Gat No.501, and it would also mean that the land

owned and possessed by the respondents is actually Gat No.501

and not Gat No.502. Curiously enough, the application does not

show that any correction deed has also been executed in respect

of the sale deed which is the basis of the suit filed by the

respondents, being Suit No.179/2008, against the petitioner.

Then there is also a decree dated 30/8/2010 passed in Regular

Civil Suit No.254/2008 filed by the petitioner against the

respondents, wherein the respondents have been perpetually

injuncted from interfering with the possession of the petitioners

over Gut No.501 to the extent of their share. This decree has

Writ Petition No.130/2016

attained finality and had confirmed the ownership and possession

of the petitioners over Gat No.501. Against this decree, one fails

to understand as to how the respondents, who are the plaintiffs

in the Suit No.179/2008, could seek to draw advantage from

some admissions given by the petitioner in some transaction with

the persons who are not parties to the suit. In this background,

the proposed amendment could not be said necessary to

determine the real controversy and has also the potential to

change the nature of suit. In the amendment application also,

no particular period of time regarding knowledge about the

execution of the exchange deed by the petitioner with other

purchasers has been mentioned. No reasons for the delay are

given. Admittedly, this amendment application was moved after

commencement of the trial and it was moved at the stage when

the evidence was recorded. Due diligence test thus has not been

answered by the respondents.

3. All the above referred material aspects of the case, it

appears, have not been considered by the learned Jt. Civil Judge,

Senior Division, Parbhani when he passed the impugned order on

8/10/2015 allowing the amendment application. If this order is

allowed to stand, which is not in consonance with the provisions

of Order VI Rule 17 of the Code of Civil Procedure, it would also

Writ Petition No.130/2016

result in changing the nature of the suit. Such an application

ought not to have been allowed by the learned Civil Judge.

4. In the result, the Writ Petition is allowed. The

impugned order is quashed and set aside. The amendment

application stands rejected. Rule is made absolute in the above

terms. No costs.

( S. B. SHUKRE ) JUDGE

fmp/wp130.16