Bombay High Court
M.G. Sonchhatra (Dead) Thr. Lrs. ... vs Dr. Balasaheb S/O Kashinath ... on 22 November, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No. 6592/2017
1] Morarjibhai S/o Gokuldas Sonchhatra,
(Dead) through Legal Heirs
1.a. Mansukhlal S/o Morarjibhai Sonchhatra,
Age 73 years, Occ. Business
1.b. Trimbaklal S/o Morarjibhai Sonchhatra,
Age 70 years, Occ. Business
1.c. Bharat S/o Morarjibhai Sonchhatra
(Dead) through Legal Heirs
c.1. Kusumben Wd/o Bharat Sonchhatra,
Age 64 years, Occ. Household
c.2. Hitesh S/o Bharat Sonchhatra,
Age 36 years, Occ. Business
c.3. Hemanshu S/o Bharat Sonchhatra,
Age 33 years, Occ. Business
1.d. Madan S/o Morarjibhai Sonchhatra,
Age 61 years, Occ. Business
1.e. Mukeshkumar S/o Morarjibhai Sonchhatra,
Aged 56 years, Occ. Business
1.f. Nandkishor S/o Morarjibhai Sonchhatra,
Aged 54 years, Occ. Business
1.g. Lalit S/o Morarjibhai Sonchhatra,
Age 54 years, Occ. Business
All residents of Ramnagar, Gondia, Tah & Dist. Gondia
1.h. Smt. Gunwantiben W/o Hasmukhlala Unadkat,
Age 65 years, Occ. Household,
R/o Main Road, Jalgaon Jamod,
Dist. Buldhana
1.i. Smt. Nilamben W/o Arvindkumar Tanna,
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Age 53 years, Occ. Household,
R/o Mangal Murti Apartment,
2nd Floor, Kharetown, Dharampeth,
Nagpur
Petitioners A to I through power of attorney holder:-
Ashok S/o Morarjibhai Soncchatra,
Age 63 years, Occ. Business,
R/o Shivaji Ward, Railtoli, Gondia
2] Ashok S/o Morarjibhai Sonchhatra,
Age 63 years, Occ. Business,
R/o Shivaji Ward, Tailtoli, Gondia
..... PETITIONERS
...V E R S U S...
2] Dr. Balasaheb S/o Kashinath Choudhary,
Age 60 years, Occ. Medical Practitioner,
R/o Shivaji Ward, Railtoli, Gondia
... RESPONDENT
=====================================
Shri A.N. Vastani, Advocate for the petitioners
Shri P.Bapat, Advocate for the respondent
=====================================
CORAM:- Z.A. HAQ,J.
DATED :- 22 nd November
,
201
7
ORAL JUDGMENT :-
Heard.
Rule. Rule made returnable forthwith.
2] The petitioners(original defendants) have challenged the
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order passed by the learned Principal District Judge rejecting the
application (Exh. 22) filed by them seeking permission to amend the
written statement.
3] The respondents/plaintiffs had filed the civil suit praying for
decree for eviction and possession. This civil suit is decreed by the
judgment dated 20/12/2012. The judgment and decree passed by the
trial Court is challenged before the District Court in appeal which is
pending. During the pendency of the appeal, the petitioners filed the
application (Exh. 21) seeking permission to amend the memorandum of
appeal and to incorporate additional grounds. This application is
allowed by the order dated 11/09/2017. Simultaneously, the
petitioners had filed application (Exh. 22) seeking permission to amend
the written statement. This application is dismissed by the impugned
order.
4] The learned Principal District Judge has rejected the
application (Exh. 22) on the ground that the petitioners were having
knowledge about the facts, which they are seeking to bring on record,
since April, 2014 and there is no explanation for not filing the
application seeking permission to amend the written statement
immediately after April, 2014. The application (Exh. 22) is filed on
11/08/2017. The learned District Judge has observed that the
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petitioners had been negligent in persuing the matter.
5] The learned advocate for the respondent/plaintiff has
argued that the proposed amendment cannot be considered as the
petitioners are seeking to bring on record the facts on which the
adjudication will be required and the application (Exh. 22) is filed only
to prolong the disposal of appeal and there are no bonafides. To counter
this submission, the advocate for the petitioners, have stated that the
submission made on behalf of the respondent/plaintiff that there are no
bonafides is not justified and on instructions, willingness is shown to
pay Rs. 50,000/- to compensate the respondent/plaintiff for the delay in
moving the application.
6] With the assistance of the learned advocates for the
respective parties, I have examined the proposed amendment. The
petitioners are seeking to bring on record their contention that during
the pendency of the civil suit, Block No. 7 occupied by the another
tenant-Dr. Shobna Joshi was vacated that though the plaintiff had
amended the plaint and pleaded that the shop which was vacated by
Dr. Shobna Joshi was occupied by her son- Manish for godown
purposes, after the decision of the civil suit, the respondent/plaintiff
leased out the said shop to Siddhi Beauty Parlour. The petitioners also
seek to bring on record certain pleadings and documents to show that
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the relationship between the plaintiff and his sons Nikhil and Manish
had not been cordial during the pendency of the civil suit. The
petitioners have pleaded that they got the documents sometime in 2014
i.e. during the pendency of the appeal before the District Court. The
petitioners are seeking to bring on record their contention that another
shop which fell vacant during the pendency of the civil suit is leased out
after the decision of the civil suit. Though the submission made by the
learned advocate for the respondent/plaintiff that the petitioners intend
to prolong the disposal of the proceedings, prima facie, appears to be
justified, in my view, considering the nature of the proposed
amendment and the fact that the appeal is pending without any
progress, the following order is passed:-
O R D E R
1] The impugned order is set aside.
2] The application (Exh. 22) filed by the
petitioners is allowed.
3] Accepting the submission made on behalf of
the petitioners as recorded earlier, it is directed that the
petitioners shall pay Rs. 50,000/- to the
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respondent/plaintiff by demand draft till 29/12/2017 by
submitting the demand draft in the proceedings of appeal
pending before the District Court. If the amount of Rs.
50,000/- is not paid to the respondent/plaintiff till
29/12/2017 by demand draft, this order shall stand
recalled and the learned Principal District Judge shall
proceed with the hearing of the appeal on merits
according to law.
Rule is made absolute in the above terms.
JUDGE
A n s a r i
