Bombay High Court
Suryabhan S/O. Atmaramji ... vs Dhanraj S/O. Shamrao Rakhe And ... on 11 January, 2018
Bench: Z.A. Haq
1 wp1949.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.1949/2016
1. Suryabhan S/o Atmaramji Vairagade,
aged about 54 Yrs., Occu. Service,
R/o Mouda, Tah. Mouda, Distt. Nagpur.
2. Sadashiv S/o Atmaramji Vairagade,
aged about 61 Yrs., Occu. Cultivator,
R/o Dhanla, Tah. Mouda, Distt. Nagpur. ..Petitioners.
..Vs..
1. Dhanraj S/o Shamrao Rakhe,
aged about 37 Yrs., Occu. Cultivator.
2. Chandrashekhar S/o Deoram Deshmukh,
aged about 35 Yrs., Occu. Cultivator,
Both R/o Parsodi, Post Jawaharnagar,
Tah. and Distt. Bhandara. ..Respondents.
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Shri O.K. Masurke, Advocate for the petitioners.
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CORAM : Z.A. HAQ
, J.
DATE : 11.1.2018.
ORAL JUDGMENT
1. Heard Shri O.K. Masurke, Advocate for the petitioners. None
appears for the respondents though served.
2. Rule. Rule made returnable forthwith.
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3. The petitioners / original plaintiffs have challenged the order passed
by the trial Court, rejecting the application filed by them under Order VI Rule
17 of the Code of Civil Procedure seeking permission to amend the plaint.
4. The plaintiffs have filed the civil suit praying for decree for
declaration that they are the owners of fields in question and seeking decree for
perpetual injunction restraining the defendants from interfering with their
possession over the suit field. The trial progressed, and after the filing of
written statement by the defendants, the plaintiffs filed the application seeking
permission to amend the plaint. This application is rejected by the impugned
order recording the reason that in paragraph No.9 of the plaint, the plaintiffs
have admitted the ownership of defendants over field survey No.892 and in the
amendment application there is no such averment. The learned trial Judge has
recorded that if the amendment application is allowed it would cause prejudice
to the defendants and would change the nature of civil suit.
5. With the assistance of the learned Advocate for the petitioners, I
have examined the plaint and the application filed by the plaintiffs seeking
permission to amend the plaint (the copies of which are filed on record). I find
that in paragraph No.9 of the plaint, the plaintiffs have not admitted the
ownership of defendants over field survey No.892 but have stated the fact that
at present, after consolidation, field survey No.892 is recorded in the name of
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the defendants. The pleadings in paragraph No.9 of the plaint do not amount
to admission by the plaintiffs that defendants are the owners of field survey
No.892.
6. The proposed amendment cannot be said to be of such a nature that
it changes the nature of claim of the plaintiffs and there is no question of any
prejudice being caused to the defendants if the proposed amendment is
allowed as the defendants would get opportunity to refute the claim of the
plaintiffs.
7. In my view, the learned trial Judge has committed an error of
jurisdiction by rejecting the application filed by the plaintiffs.
8. Hence, the following order:
The impugned order is set aside.
The application filed by the plaintiffs under Order VI Rule 17 of the
Code of Civil Procedure is allowed.
Rule is made absolute accordingly.
In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
