Sou. Balkrishna Tukaram Londhe vs Mahadev Sambhaji Londhe Decd. ...
2021 Latest Caselaw 1669 Bom

                                                                               (9) WP-1280-20.doc

BDP-SPS

  Bharat

                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  D.
  Pandit
  Digitally signed




                                        CIVIL APPELLATE JURISDICTION
  by Bharat D.
  Pandit
  Date:
  2021.01.30
  10:51:56 +0530




                                       WRIT PETITION NO. 1280 OF 2020

                     Balkrishna Tukaram Londhe                              ... Petitioner.
                                Vs
                     Mahadev Sambhaji Londhe
                     (died through their legal heirs)
                     1a. Kusum Mahadev Londhe and Ors.                      .... Respondents.

                     Mr. V.H. Narvekar i/b Prasad P. Kulkarni for the Petitioner.
                     None for the Respondent.

                                         CORAM: NITIN W. SAMBRE, J.

                                         DATE:    JANUARY 25, 2021

                     P.C.:-

                     1]       Regular Civil Suit No.169 of 2014 is initiated by the

Petitioner/Plaintiff for injunction based on family arrangement, which

claim appears to have acted upon as the partition was effected

between the parties to the suit.

2] The suit claim was resisted by the Respondent/Defendant by

denying partition. Counter claim was moved by the

Defendant/Respondent seeking relief of declaration that the Defendant

is entitled for part of the suit property towards his share.

(9) WP-1280-20.doc

3] In the aforesaid backdrop, application-Exhibit-56 for amendment

of plaint came to be moved which is rejected vide impugned order

dated 9/9/2019 passed below Exhibit-56. As such, this Petition.

4] The submissions are, the order impugned is liable to be set aside

by allowing application-Exhibit-56 for amendment on the following

grounds (a) that the suit is based on family arrangement and only

prayer made therein is of declaration and injunction and (b) suit is at

the stage of beginning of recording of evidence and a such effective

trial in the suit is yet to commence. As such, if prayer for amendment

is allowed, in that eventuality, no prejudice is likely to be caused to

other side. Further submissions are, requirement of amendment of

plaint is based on the pleadings in the counter-claim raised by the

Respondent/Defendant.

5] I have appreciated the aforesaid submissions in the light of the

prayer of the Petitioner/Plaintiff in the plaint for declaration and

injunction. Petitioner in the plaint has asserted that there is family

arrangement by virtue of which he is in settled possession of the suit

property and as such prayer for declaration and injunction came to be

(9) WP-1280-20.doc

moved. Once the Petitioner has come out with the case of existing

partition, he is rightly not permitted by the Trial Court to raise

contradictory plea of seeking partition of the suit property by way of

amendment.

6] The learned Counsel for the Petitioner has relied on the

judgment of this Court (Aurangabad Bench) dated 31/1/2017

delivered in Writ Petition No. 7042 of 2012 in the matter of Parvatibai

d/o Chandrashekhar Swami vs. Hirabai Swami and Ors. so as to

substantiate his contention that amendment of suit pleadings can be

sought at any stage of the suit and it is immaterial whether

amendment has been sought at the fag end of the suit, unless the

effect of allowing the amendment is causing prejudice or irreparable

harm to other side.

7] If the observations made in the aforesaid judgment are

appreciated, at the out set it is required to be noted that the suit claim

in the facts of the said case is not based on the plea of existence of

partition. Apart from above, fact remains that allowing amendment at

present stage of the proceedings is not an issue on which the Trial

(9) WP-1280-20.doc

Court rejected the prayer of the Petitioner for amendment. Rather,the

Court has noticed that once the Petitioner has come out with the case

of already existing partition, he cannot be permitted to take

contradictory plea. As such, aforesaid judgment will be hardly of any

assistance to the Petitioner.

8] Apart from above, it is required to be noted that by way of

aforesaid contradictory pleadings, the nature of suit claim would have

undergone change in its entirety. That being so, no case for

interference in the order impugned is made out. As such, Petition

fails and same stands dismissed.

( NITIN W. SAMBRE, J. )