Mohan S/O Bherumal Dadlani vs Shri Kirankumar S/O Pannalal ...
2017 Latest Caselaw 1002 Bom

 Judgment                                          1                                wp5289.14.odt




                  
                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               NAGPUR BENCH, NAGPUR.


                           WRIT PETITION NO. 5289 OF 2014


 Mohan S/o. Bherumal Dadlani,
 Aged about 39 years, Occu.: Business, 
 R/o. Indira Colony, Near Post Office, 
 Jaripatka, Nagpur. 
                                                                       ....  PETITIONER.

                                    //  VERSUS //


 1. Shri Kirankumar S/o. Pannalal Deshraj,
    Aged about 65 yeas, Occu.: Business, 
    R/o. Anmol Apartments, Mecosabagh,
    Nagpur. 

 2. Manish Kiran Kumar Deshraj,
    R/o. Shri Rudram , 3/2, 
    Vali Apartment, Opp. Durga Mandir,
    Katol Road, Chhaoni, Nagpur- 440 013. 

 3. Smt. Manjusha W/o. Omprakash Deshraj,
    Aged about 53 years, Occu. : Household.

 4. Warunsingh Omprakash Deshraj, 
    Aged about 24 years, Occu. : Student

 5. Smt. Divya W/o. Amitkumar Chaudhry,
    Aged about 27 years, Occu. : Household,
    R/o. C/o. Amit Kumar Chaudhry, 
    Plot No.2, Dayalbagh Agra (U.P.)

 6. Vishalsingh S/o. Omprakash Deshraj,
    Aged about 28 years, Occu. : Business,

      Nos. 3 to 6, All residents of Deshraj
      Bhuvan, Gandhi Chowk, Sadar, Nagpur. 
                                                   .... RESPONDENTS
                                                                     . 
  ___________________________________________________________________
 Shri M.P.Lala, Advocate for Petitioner. 
 None for the respondents. 
 ___________________________________________________________________


::: Uploaded on - 29/03/2017                           ::: Downloaded on - 31/03/2017 00:14:02 :::
  Judgment                                              2                                wp5289.14.odt




                              CORAM : Z.A.HAQ, J.

DATED : MARCH 23, 2017.

ORAL JUDGMENT :

1. Heard learned advocate for the petitioner-original plaintiff.

None appears for the respondents, though served.

2. RULE. Rule made returnable forthwith.

3. The petitioner/ plaintiff has filed this petition challenging the

order passed by the trial Court rejecting the application (Exh.115) filed by

the plaintiff seeking permission to amend the plaint.

4. The plaintiff has filed civil suit praying for decree for specific

performance of contract or in the alternative for refund of the earnest money.

The plaintiff has also prayed for decree for permanent injunction restraining

the defendants from undertaking any construction over the land adjoining

the suit property,which may reduce the area of the suit property. The plaintiff

has prayed for decree for permanent injunction restraining the defendants

from creating third party interest in the suit property. In this civil suit, the

plaintiff filed application (Exh.115) seeking permission to amend the plaint.

By the proposed amendment, the plaintiff intends to bring on record certain

pleadings to substantiate his claim. The application(Exh.115) is rejected by

the impugned order on the ground that certain pleadings which the plaintiff

Judgment 3 wp5289.14.odt

intends to bring on record are not relevant and that it appears that the

plaintiff intends to amend the plaint only to refute the contentions of the

defendants.

5. In my view, the reasons given by the learned trial Judge for

rejecting the application (Exh.115) are not proper. Whether the pleadings

which the plaintiff wants to bring on record by the proposed amendment are

directly related to the claim of the plaintiff or not cannot be adjudged at this

stage unless the plaintiff is permitted to incorporate the pleadings and lead

evidence on those aspects. In the impugned order there is nothing which

shows that there is any legal impediment because of which the plaintiff

cannot be permitted to amend the plaint. The learned trial Judge has not

considered the matter properly and has committed an error by rejecting the

application (Exh.115).

Hence, the following order :

i) The impugned order is set aside.

ii) The application (Exh.115) filed by the plaintiff is allowed.

iii) The plaintiff is permitted to amend the plaint as prayed in the

application.

Rule is made absolute in the above terms. In the circumstances,

the parties to bear their own costs.

JUDGE RRaut..