Indalsing Champalal Bamnawat And ... vs Bharatabai Poonamsingh Sulane
2017 Latest Caselaw 9060 Bom

                                            1                              WP-1049-14

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        WRIT PETITION NO. 1049 OF 2014


1.     Indalsingh s/o Champalal Bamnawat
       Age : 36 years, occup. Agriculture,
       R/o Sanjarpurwadi (Jamanwadi),
       Tal., Vaijapur, Dist. Aurangabad

2.     Lalchand s/o Champalal Bamnawat
       Age : 31 years, occup. Agriculture,
       R/o Sanjarpurwadi (Jamanwadi),
       Tal., Vaijapur, Dist. Aurangabad

3.     Shantilal s/o Champalal Bamnawat
       Age : 27 years, occup. Agriculture,
       R/o Sanjarpurwadi (Jamanwadi),                          .. Petitioners / orig.
       Tal., Vaijapur, Dist. Aurangabad                     .. Defendants no.2 to 4

                        versus

       Bharatabai w/o Poonamsingh Sulane        .. Respondent / orig.
       Age 25 years, occup. Household,             Plaintiff
                    -----

Mr. S. S. Kazi, Advocate for petitioners Mr. S. S. Phatale, Advocate for respondent

CORAM : SUNIL P. DESHMUKH , J DATE : 27-11-2017

ORAL JUDGMENT: :

1. Rule. Rule made returnable forthwith. Heard learned counsel

for appearing parties finally by consent.

2. Writ petition questions propriety of order passed on

01-01-2014 by 2nd Joint Civil Judge, Junior Division, Vaijapur, on

Exhibit - 42 in regular civil suit bearing no. 210 of 2008.

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3. Present respondent is the plaintiff and petitioners are

defendants in aforesaid suit instituted for declaration of ownership

and possession of suit properties.

4. It is being submitted by Mr. Kazi, learned counsel appearing

on behalf of the petitioners that after issues were framed, lot of

time had been consumed in presenting affidavit in examination in

chief and the matter had not been prosecuted by plaintiffs. In the

meanwhile, petitioners had moved application for amendment to

the written statement, however, the same had been rejected

considering that the trial had commenced.

5. He submits that in such a case, while the plaintiff had applied

for amendment to the plaint subsequently seeking claim for

partition the same had been granted, after order as aforesaid had

been passed denying request of the petitioners for amendment to

the written statement, which in his submission, is incorrect and

improper, as the yardstick ought to have been uniformly applied.

He submits that the change in view with change of the incumbent

deciding the matter would hardly be palatable.

6. Mr. Kazi purports to rely on a decision of the apex court in the

case of Kenchegowda (since deceased) by legal representatives vs.

Siddegowda alias Motegowda, reported in 1994 DGLS (Soft.) 504=1994 4

SCC 294, wherein, according to learned counsel, in similar situation

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while the high court had passed a preliminary decree and the same

had been set aside by the supreme court.

7. He purports to refer to that in said case as well, suit had

been instituted initially for declaration and possession of suit

property and subsequently amendments had been sought to covert

it into suit for partition on the basis of application under Order VI,

Rule 17 of the Code of Civil Procedure, 1908. The suit had failed

and in an appeal therefrom, the same abated against defendant

no. 1 since his legal representatives had not been brought on

record. However, the first appellate court purportedly considered

that cause of action survives against defendant no. 2 and had

dismissed the appeal and in second appeal along with application

for amendment to plaint pursuant to order VI, rule 17 of the Code

of Civil Procedure, the high court had granted 1/3rd share in the

suit property drawing preliminary decree. The supreme court in

said case had considered that high court decision was not proper

since the appeal could not survive against defendant no. 2 while it

had abated against defendant no.1.

8. Learned counsel for respondent - plaintiff contends that

citation relied on, on behalf of the petitioners, would seldom have

application in the fact-situation in present matter. He submits that

the age of the plaintiff shall receive its due because while the suit

had been instituted she was barely 19 years of age and had hardly

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any experience of litigation nor proper advice had come through for

her. In the circumstances, while it had been realized in the

proceedings that partition would be required to be sought,

accordingly, amendments had been prayed for and application

made to that effect had been granted.

9. He refers to order passed by the court and submits that it is

considered in the order that the amendment is necessary for

deciding controversy between the parties finally. It is not the case

that there had been no due diligence on plaintiff's behalf and

referring to certain stages in the suit, it had been considered by the

court that application would not be liable to be rejected, taking into

account the basic intent underlying the provisions for amendments.

10. He submits that it is not the case of the petitioners that they

had been aggrieved by the order rejecting their application for

amendment to the written statement. He, therefore, submits that

while it had been considered expedient taking into account all the

surrounding circumstances particularly that the plaintiff is a

woman and of young age, extraordinary powers may not be

exercised to cause interlude in impugned order.

11. Looking at aforesaid, petitioners appear to have moved writ

petition for discretionary relief and objection sought to be raised to

propriety of impugned order, taking overall view, can be mended

awarding costs observing that the petitioners - defendants would

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have an opportunity, while they would defend amendment to

plaint, and can renew their claim for amendment to written

statement which had been declined earlier considering that the

same had been sought after trial had commenced.

12. The general position of law would show that the courts are

supposed to be liberal when amendments are sought. This matter

undoubtedly is coming from rural / moffussil area. As such, it

would be expedient that the request made under the writ petition

would not be indulged into by imposing costs of Rs.2000/- in

addition to Rs.200/- already awarded by the trial court.

13. As such, costs awarded by trial court are enhanced to

Rs.2200/-. Balance amount of cost of Rs. 2000/- is liable to be paid

by plaintiff to defendants or be deposited in the trial court within a

period of three months from the date of receipt of writ of this order.

14. Writ petition stands disposed of with observations as

aforesaid.

15. Rule discharged.

SUNIL P. DESHMUKH JUDGE

pnd