Bombay High Court
Madan Sampat Dhote And Others vs Madhukar Kisan Sulkar And Others on 9 December, 2021
Bench: Avinash G. Gharote
1 38 & 41. CRA.27-21 WITHWP.2599-21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CIVIL REVISION APPLICATION (CRA) NO. 27 OF 2021
( Madan Sampat Dhote & Ors. Vs. Madhukar Kisan Sulkar & Ors. )
WITH
WRIT PETITION NO. 2599 OF 2021
( Madan Sampat Dhote & Ors. Vs. Madhukar Kisan Sulkar & Ors. )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. R.M. Vaidya, Advocate for the Applicants/Petitioners in both matters.
Mr. N.B. Kalwaghe, Advocate for the Respondent No.1 in both matters.
Ms. Hemlata Jaipurkar, AGP for Respondent Nos. 2 to 6/State
in both matters.
CORAM: AVINASH G. GHAROTE, J.
DATED : 9th DECEMBER, 2021.
Heard Mr. Vaidya, learned counsel for the
applicants in C.R.A. No. 27/2021 and for the petitioners
in W.P. No. 2599/2021.
2. In RCS No. 90/2019 two applications came
to be filed. One Exh. 29, an application for rejection of
the plaint, under Order VII Rule 11 (d) of the Code of
Civil Procedure (for short "C.P.C."), on the ground, that
the suit was barred by limitation as well as by Section
158 of the Maharashtra Land Revenue Code (for short
"the M.L.R. Code"), which was by the defendants and the
other by the plaintiff at Exh. 49, an application under
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Order VI Rule 17 of C.P.C., for amendment of the plaint.
Exh. 29 was rejected and Exh. 49 was allowed. Against
the rejection of Exh. 29, C.R.A. No. 27/2021 has been
filed and against the order allowing of the application for
amendment W.P. No.2559/2021 has been filed.
3. Mr. Vaidya, learned counsel for the
applicants/petitioners contends, that Section 138 read
with Section 158 of the M.L.R. Code, creates a bar for
filing of a suit against the State Government or any
Officer of the State. He submits, when a settlement in
respect of boundary was already recorded by the
Divisional Commissioner, under the provisions of Section
138 of the M.L.R. Code, which was confirmed by the
High Court, the plaint ought to have been rejected,
inasmuch as, the suit claimed a relief in clause (d)
against the defendant Nos. 5 to 9, who were the Revenue
Authorities. He further submits, that insofar as, the relief
claimed in clause (c), regarding the measurement entry
No. 1161 being incorrect and illegal and contrary to law,
such a relief, could not have been claimed in the suit. He
therefore submits, that the application for rejection of the
plaint, ought not to have been rejected by the High
Court.
4. Insofar as, the application for amendment is
concerned, learned counsel submits, that the application
was filed with a mischievous intent to delete prayer
clause (d), which claimed a relief against the defendant
Nos. 5 to 9, who were the Revenue Authorities, and
3 38 & 41. CRA.27-21 WITHWP.2599-21.odt
therefore, merely to get out from the bar created under
Section 158 of the M.L.R. Code, such an amendment
ought not to have allowed by the learned Trial Court.
5. Insofar as, the question of amendment is
concerned, it is the sole discretion of the plaintiff, as to
what relief should be claimed in the suit. The provisions
of Order II Rule 2 of C.P.C., permit a plaintiff to
relinquish the part of the claim made in the suit and the
application for amendment under the Order VI Rule 17
of C.P.C., insofar as, it seeks deletion of the prayer clause
(d), is clearly within the rights of the plaintiff. The
plaintiff, cannot be forced to seek a relief, which the
plaintiff does not want. There cannot be any dispute with
the proposition as laid down in Rajkumar Gurawara
(Dead) Through LRS Vs. S.K. Sarwagi And Company
Private Limited and another, (2008) 14 SCC 364, and
Radhika Devi Vs. Bajrangi Singh And Others, (1996) 7
SCC 486, relied upon by Mr. Vaidya, learned counsel for
the petitioners which hold, that the amendment at
belated stage, ought not to be granted, however in the
instant case, what has been permitted, is a deletion of a
relief claimed by the plaintiff in the plaint, the
entitlement to which the plaintiff can relinquish at any
time, considering which it cannot be said that the learned
Trial Court has committed any illegality. Writ Petition
No.2599/2021, therefore is clearly without any merits,
and is accordingly dismissed with no order as to costs.
6. Insofar as, the claim under Order VII Rule
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11 (d) of C.P.C. is concerned, due to the deletion of
prayer clause (d), which claimed a relief against the
Revenue Authorities, the bar under Section 158 of the
M.L.R. Code, is no longer attracted. Considering which,
the order by the learned Trial Court, insofar as, rejects
the application under Order VII Rule 11(d) of C.P.C., also
cannot be faulted with.
7. The further contention is that because the
learned Divisional Commissioner had passed an order
under Section 138 of the M.L.R. Code, effecting the
settlement of boundary, which has been upheld by this
Court, the suit would not be maintainable, and therefore,
the same would create a bar capable of being considered
under Order VII Rule 11(d) of C.P.C. It is pertinent to
note, that Sub-Section (4) of Section 138 of the M.L.R.
Code, itself entitles a person, who has been ejected or it
about to be ejected to institute a Civil Suit to establish his
title, which would demonstrate that the order of the
Divisional Commissioner, regarding the settlement of
boundary, can also be made the subject matter of a suit.
Reliance by Mr. Vaidya, learned counsel for the
petitioners placed on Popat Jaysingh Rajpure Vs. State of
Maharashtra and others, 2012(5) Mh.L.J. 884, to
contend that the bar under Section 138 (4) of the M.L.R.
Code, can form the basis of an application under Order
VII Rule 11 (d) of C.P.C., is clearly misplaced, as the said
judgment does not renders such a finding.
5 38 & 41. CRA.27-21 WITHWP.2599-21.odt
to 9 from the array of defendants, can definitely form the
subject matter of an application under Order I Rule 10 of
C.P.C., but not under Order VII Rule 11(d) of C.P.C.
9. This being the position, in my considered
opinion, the learned Trail Court has not committed any
error in rejecting the application under Order VII Rule 11
of C.P.C. The Civil Revision Application No.27/2021 is
also without any merits and is accordingly dismissed with
no order as to costs.
JUDGE
SD. Bhimte
Signed By:SHRIKANT
DAMODHAR BHIMTE
Signing Date:10.12.2021 18:09
