Bombay High Court
Prakash S/O Sheshmal Kothari vs Shri Ramlal S/O Ganesh Singh on 6 July, 2017
Bench: I.K. Jain
14-J-WP-5948-16.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.5948 OF 2016
Prakash s/o Sheshmal Kothari
aged about 62 years,
Occupation - Cultivation and business,
resident of Samadhi Ward,
Chandrapur,
Tq. and Dist. Chandrapur. .. PETITIONER
.. VERSUS ..
Ramlal s/o Ganesh Singh
aged about 55 years,
Occ. Business, Resident of Tadali,
Tq. and Dist. Chandrapur .. RESPONDENT
..........
Shri M. P. Khajanchi, Advocate for petitioner.
Ms Sneha S. Dhote, Advocate for respondent.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : JULY 06, 2017.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. Heard
finally with the consent of learned counsel for the parties.
2. The challenge in this petition is to the order dated
29/06/2015 passed by learned Jt. Civil Judge (Junior
Division), Chandrapur in Regular Civil Suit No.69 of 2011
thereby rejecting an application for amendment (Exhibit-33)
preferred by the petitioner.
3. Facts giving rise to the petition may be stated in
brief as follows :
Petitioner is the plaintiff in Regular Civil Suit
No.69/2011 filed against the respondent/defendant. The
suit is for mandatory and perpetual injunction, possession
and damages. It was filed on 06/06/2011. After issues
came to be framed and the suit was listed for evidence,
plaintiff moved an application for amendment under Order
VI Rule 17 of the Code of Civil Procedure on 16/12/2014. By
the impugned order application for amendment came to be
rejected. Hence this petition.
4. Heard Shri M. P. Khajanchi, learned counsel for
petitioner and Ms Dhote, learned counsel for respondent.
With the assistance of learned counsel for the parties, this
Court has gone through the pleadings in plaint, written
statement and an application for proposed amendment.
According to petitioner on 16/06/2014, he got the property
measured by retired DILR. On spot inspection, map was
prepared and based on map plaintiff has to amend the
pleadings in the plaint.
5. Respondent/defendant objected the application on
two grounds (i) delay in filing application not explained and
(ii) application was filed after commencement of trial.
6. It is not in dispute that issues came to be framed
and affidavit-in-lieu of evidence has been filed by plaintiff
before an application for amendment was made. It is also
not in dispute that trial had commenced before the
amendment was proposed.
7. So far as delay is concerned, according to plaintiff
he got the land measured in June 2014 and after the map
was prepared, he filed an application for amendment along
with the map. Submission is that amendment relates to
subsequent development and there was no delay as such.
8. Learned counsel for respondent vehemently
opposed the submission made by learned counsel for
petitioner. He points out that after framing of issues and
filing of affidavit-in-lieu of evidence, provisions of Order VI
Rule 17 of the CPC cannot be invoked and trial Court has
rightly rejected the application.
9. The undisputed facts would reveal that suit is for
permanent and mandatory injunction, possession and
damages. No where plaintiff says that it is for removal of
encroachment. According to plaintiff, he got the land
measured on 16/6/2014 and on measurement, it was found
that the disputed land involved is 15' x 20' and not 15' x 10'
as shown in the prayer clause of plaint. Proposed
amendment is based on the map drawn by on spot
inspection.
10. Considering the nature of controversy between the
parties and since it relates to subsequent development, this
Court is of the view that proposed amendment is essential
to decide the controversy between the parties and there is
no embargo even under order VI Rule 17 of CPC to allow
such an amendment.
11. Another submission of the respondent that suit
was filed in the year 2011 and amendment application was
moved in 2014 and so there was an inordinate delay does
not hold good as measurement was in June 2014 and not in
the year 2011.
12. In the above background this Court finds that trial
Court committed an error in rejecting the application.
Interference is thus warranted in writ jurisdiction. Hence
the following order :
(i) Writ petition is allowed.
(ii) The impugned order dated 29/06/2015 passed by
learned Jt. Civil Judge (J.D.) Chandrapur in R.C.S.
No.69/2011 is quashed and set aside.
(iii) Application (Exhibit-33) is allowed. Plaintiff to
carry out amendment within two weeks.
(iv) Defendant is at liberty to make consequential
amendment, if any.
(iv) Trial Court to proceed with the suit in accordance
with the law.
(v) Rule is made absolute in above terms. No costs.
(Kum. Indira Jain, J.)
Asmita, PA
