Bombay High Court
Ramrao S/O Tulshiram Giakwad vs Archana W/O Mahendra Piwadatkar on 3 February, 2021
Bench: V.M. Deshpande
1 030221wp3408.20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 3408 OF 2020
RAMRAO S/o TULSHIRAM GAIKWAD
VERSUS
ARCHANA W/o MAHENDRA PIVLATKAR
------------------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
------------------------------------------------------------------------------------------------------
Mr. M. G. Sarda, Advocate for the petitioner.
Mr. A. R. Deshpande, Advocate for the respondent.
CORAM : V. M. DESHPANDE, J.
DATE : FEBRUARY 03, 2021.
1. Heard Mr. M. G. Sarda, learned counsel for the
petitioner and Mr. A.R. Deshpande, learned counsel for
the respondent.
2. By this petition, the petitioner is challenging the
order passed by learned District Judge-4, Akola dated
05.02.2020 below Exh.11 in Regular Civil Appeal No.
51/2017, whereby the learned Judge has dismissed the
application for amendment moved under Order VI Rule
17 of the Code of Civil Procedure.
3. The respondent herein has filed a suit for specific
performance of the contract against the petitioner in view
of the agreement dated 06.6.2008 under which, according
to the respondent/plaintiff, the petitioner/defendant had
agreed to execute the Deed of Conveyance in his favour
in respect of the agricultural property/plot.
The suit was contested by the petitioner/defendant.
After a full dressed trial, the learned Civil Judge, Senior
Division, Akola vide judgment and order dated
02.05.2017, decreed the suit and the decree of specific
2 030221wp3408.20.odt
performance was granted by giving direction to the
petitioner/ defendant to execute the Sale Deed in respect
of the suit property.
4. The said judgment and decree was challenged by
the petitioner by filing an appeal i.e. Regular Civil Appeal
No. 51/2017. It is an admitted position before this Court
that as per the directions given by the learned Civil
Judge, Senior Division, Akola, the respondent/plaintiff has
deposited the amount in the Court and the appeal is fixed
for final hearing.
5. At this stage, the petitioner/defendant filed an
application under Order VI Rule 17 of the Code of Civil
Procedure for amendment. According to the petitioner,
the predecessor-in-title of the petitioner one Bapurao
Kaple and after his death his legal heirs, sold more land
than what was standing in their name. Therefore,
according to the petitioner, the description of the property
as given in paragraph 1 of the plaint is not proper. In
order to clarify that, according to the submission of the
petitioner, the amendment application was filed.
6. The law in respect of acceptance or rejection of
application for amendment is well crystalized by the
Hon'ble Apex Court. The party who is seeking
amendment must point out that in spite of due diligence
the fact which proposed to be brought on record by way
of an amendment, was not within the knowledge of such
party. The application for amendment is placed on record
in this proceeding at Annexure-6 (page 69). Perusal of
the application shows that the application is
3 030221wp3408.20.odt
conspicuously silent as to when the petitioner got
knowledge of the sale deeds executed by the petitioner's
predecessor-in-title and his legal heirs after his death.
The application is vague. Though, the petitioner has
given the dates of the Sale Deeds and those Sale Deeds
are prior to the judgment and decree passed by the
learned Judge of the trial Court, in that context the date of
knowledge assumes importance. When such an
important date is missing in the application, in my view,
the learned Judge of the Appellate Court was right in
applying the principle of due diligence. That gives
support to another view to the submission made by the
learned counsel for the respondent that the application
was nothing but an attempt to prolong final hearing of the
appeal.
7. There is no merit in the writ petition. The writ
petition fails and the same is accordingly dismissed. No
order as to costs.
JUDGE
Diwale
Digitally signed
Parag by Parag
Diwale
Diwale Date:
2021.02.03
17:35:05 +0530
