Bombay High Court
Vitthal S/O Ramkisan Kadam, ... vs Vimlabai Wd/O Dadarao Kadam, ... on 9 January, 2018
Bench: Z.A. Haq
Judgment 1 wp934.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 934 OF 2016
1. Vitthal S/o. Ramkisan Kadam,
Aged about 40 years, Occu.: Service,
2. Godhawari W/o Vitthal Kadam,
Aged about 35 years, Occu.: Service,
3. Sharjabai Wd/o. Ramkisan Kadam,
Aged about 60 years, Occu.: Household,
All R/o. At & Post Marlegaon,
Tah. Umarkhed, District : Yavatmal.
4. Kalpana w/o. Pandurang Khandare,
Aged about 38 Yrs., Occu.: Household,
R/o. Harshi, Tah. Pusad, District : Yavatmal.
.... PETITIONERS.
// VERSUS //
1. Vimlabai wd/o. Dadarao Kadam,
Aged about 60 Yrs., Occu.: Household,
2. Gajanan s/o. Dadarao Kadam,
Aged about 40 Yrs., Occu. Agriculturist,
Both R/o. At & Post Marlegaon,
Tah. Umarkhed, District : Yavatmal.
.... RESPONDENTS
.
___________________________________________________________________
Shri G.M.Kubade, Advocate for Petitioners.
Shri V.N.Patre, Advocate for Respondents.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JANUARY 09, 2018.
ORAL JUDGMENT :
Judgment 2 wp934.16.odt
1. Heard.
2. RULE. Rule made returnable forthwith.
3. The petitioners/ original defendants have challenged the order
passed by the trial Court, allowing the application (Exh.62) filed by the
plaintiffs seeking permission to amend the plaint.
4. The respondents/plaintiffs have filed civil suit praying for
decree for perpetual injunction restraining the defendants from interfering
with possession of the plaintiffs over the suit property. In this civil suit, the
plaintiffs had filed application praying for temporary injunction which was
dismissed by the trial Court and the appeal filed by the plaintiff under Order
43 Rule 1(r) of the Code of Civil Procedure is pending before the District
Court.
The trial progressed. The defendants filed written statement
and raised counter claim and then the plaintiffs filed the application
(Exh.62).
5. The submission on behalf of the petitioners is that the trial
Court has committed an error in permitting the plaintiffs to amend the plaint
overlooking the relevant aspect that by the proposed amendment the
Judgment 3 wp934.16.odt
plaintiffs are seeking to withdraw the admission given by them regarding
partition in 1996. It is further argued that if the proposed amendment is
permitted then the nature of civil suit will change.
The learned advocate for the respondents has supported the
impugned order.
6. After examining the plaint and the application (Exh.62), the
copies of which are placed on record of the petition, I find that the
submission made on behalf of the petitioners that if the plaintiffs are
permitted to amend the plaint and to incorporate the proposed amendment,
the nature of suit would change cannot be accepted. The plaintiffs are not
making any claim which runs counter to the claim made by the plaintiffs in
the plaint.
Considering the pleadings in the plaint and the proposed
amendment, the other objection of the petitioners/ defendants that by the
proposed amendment, the plaintiffs are seeking to withdraw their pleadings
about the alleged partition of 1996 also cannot be accepted.
7. The petitioners have not been able to point out any other reason
which bars the amendment of the plaint by the plaintiffs as proposed by the
application (Exh.62). I do not see any error of jurisdiction or illegality which
necessitates interference with the impugned order.
Judgment 4 wp934.16.odt
8. The writ petition is dismissed. In the circumstances, the parties
to bear their own costs.
JUDGE
RRaut..
