Sandeep Nathu Jadhav vs Bhimrao Kondiram Tilekar And Anr
2021 Latest Caselaw 3064 Bom

                                                                           (11) wp-2872-19.doc

BDP-SPS

  Bharat
  D.
  Pandit
  Digitally signed
  by Bharat D.
  Pandit
                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION
  Date:
  2021.02.20
  13:23:12 +0530




                                       WRIT PETITION NO. 2872 OF 2019

                     Sandeep Nathu Jadhav                        ..... Petitioner.
                           V/s
                     Bhimrao Kondiram Tilekar
                     and Anr.                                    ...... Respondents.
                     ---
                     Mr. Nikhil Wadikar i/b Nandu V. Pawar for the Petitioner.
                     Mr. Prabhanjan Gujar for Respondent Nos. 1 and 2.
                     ----
                                      CORAM: NITIN W. SAMBRE, J.

                                         DATE:    FEBRUARY 16, 2021

                     P.C.:-

                     1]       RCS No.379 of 20076 was preferred by the Petitioner/Appellant

seeking a declaration that the suit property is duly redeemed and he is

an owner and as such consequently entitled for possession of the same.

The suit claim came to be dismissed vide judgment and order dated

2/1/2013. Petitioner feeling aggrieved preferred Regular Civil Appeal

No.65 of 2013 in which application-Exhibit-19 came to be moved for

amendment of plaint. Vide order impugned dated 29/8/2018, learned

District Judge rejected the application/prayer for grant of amendment.

As such, this Petition.

(11) wp-2872-19.doc

2] The learned Counsel for the Petitioner submits that the

Petitioner has already created a foundation as regards existence of

mortgage and that being so by way of amendment, he was justified in

claiming his readiness and willingness to redeem the mortgage by

repaying the mortgage money. Apart from above, he would submit

that even if amendment is granted, same will be required to be proved

by the Petitioner and that being so, court below has committed an

error in not granting amendment at appellate stage.

3] Per contra, learned Counsel for the Respondent/Petitioner

supports the order impugned and submits that Petition is liable to be

dismissed.

4] Considered rival submissions.

5] If we appreciate the claim as was made in the plaint, same is for

declaration that suit property is already free from mortgage and as a

consequence thereof, Petitioner/Plaintiff is owner of the same and as

such is entitled for possession and declaration is also sought that

proceedings taken out in relation to suit property against the Petitioner

(11) wp-2872-19.doc

be declared as illegal. As such, the case of the Petitioner is that the

suit property was already redeemed and free from mortgage.

6] By way of amendment, Petitioner is seeking addition of

contradictory pleadings thereby setting up a new case that he was

always ready and willing to pay the mortgage money, thereby

releasing the property from the clutches of mortgage. The nature of

amendment as is sought to be carried out, that too at appellate stage,

was a new case than what was sought to be canvassed by the

Petitioner/Plaintiff in his plaint. That being so, it is not open for the

Petitioner to insert altogether a new case at appellate stage by way of

carrying out amendment in the plaint. That being so, no fault could

be noticed with the order impugned in the Petition. Petition fails and

same stands dismissed.

( NITIN W. SAMBRE, J. )