Bombay High Court
Zainabbi Mohamed Bashir And ... vs Shivkumar Bankatlal Jaiswal Died ... on 12 January, 2021
Bench: V.K. Jadhav
1 926-WP.308-21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
926 WRIT PETITION NO.308 OF 2021
ZAINABBI MOHAMED BASHIR AND OTHERS
VERSUS
SHIVKUMAR BANKATLAL JAISWAL DIED THR LRS KANTABAI
SHIVKUMAR JAISWAL AND OTHERS
...
Advocate for Petitioners : Mr. S.S. Patunkar for J. P. Legal
Associates
...
CORAM : V. K. JADHAV, J.
DATE : 12.01.2021
PER COURT :-
1. The learned counsel for the petitioners / original
plaintiffs submits that after the evidence led by both the parties
and the Trial Court has heard the arguments finally, the
respondents / original defendants have filed an application
Exh.204 for carrying out amendment in the Written Statement.
The learned counsel submits that the parties to the suit, first
file the pleadings and then led the evidence in consonance with
the said pleadings. In the instant case, the Trial Court in the
impugned order has observed that the evidence is already led
by the parties and in view of the same, the amendment as
sought by the respondents / defendants is formal in nature.
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2. The learned counsel for the petitioners / original
plaintiffs in order to substantiate his contention placed his
reliance on following case :
Jayashree Subhash Kalbande and another Vs. Shri.
Bhaurao Nagorao Derkar and others, reported in
2015(1) Bom. C. R. 403.
3. The learned counsel for the petitioners / original
plaintiffs has not disputed that the petitioners / plaintiffs have
subjected the defendants for cross-examination by referring the
documents as referred in the proposed amendment.
4. I am not inclined to entertain this Writ Petition. The
respondents / defendants have filed the application Exh.204
for the following proposed amendment in paragraph No.11-A.
Para No.11-A "It is further submitted that after executed of
sale deed by said Tameezbee and plaintif No.02 to 06 fther
Bashir registered sale deed bearing No.2040/72 dt.29/12/72
in favour of Surajlal father of defendant. The said Surajlal
filed Spl.C.S.No.02/73 before Hon'ble Civil Judge, S.D.
Aurangabad against the Tameezbee, Bashir and defendant
No.07 & 08 for declaration and possession of suit property
and on 22/01/73 parties arrived compromise and filed
compromise petition the Hon'ble Court passed compromise
decree and said decree was binding to all parties and suit as a
res-judiceta. Moreover one third party Haseenabee filed two
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civil suit bearing Spl.C.S.No.113/95 and RCS.No.06/00
against defendant's about suit property. In the said judgment
Hon'ble Court declared that Shahbegum acquired suit
property through civil suit no.665/01 of 1345 fasli and suit
property was owned and possess by herself acquired property
and it is also declared that suit property are owner possession
of defendants. All certified copy of three judgments and
decree filed herein for kind perusal."
5. In a case Jayashree Subhash Kalbande and another Vs.
Shri. Bhaurao Nagorao Derkar and others, reported in 2015(1)
Bom. C. R. 403 relied upon by the learned counsel for
petitioner, permissibility of the amendment in the written
statement has been considered and held that in spite of the
knowledge, ignorance by party or an advocate cannot be a
matter of due diligence. This Court has referred the
observations by the Apex Court to the effect that the degree of
the prejudice to the other side by an amendment after
commencement of the trial is greater than one at pretrial stage.
In the instant case, in any manner, the prejudice is not
likely to be caused to the petitioners / plaintiffs even the
amendment sought at the belated stage. In the proposed
amendment vide para No.11-A, the factual matrix has brought
on record for which the parties have already led the evidence
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and placed the documents as referred in the said proposed
amendment on the record.
6. In view of the same, I find no fault in the impugned
order, when the Trial Court has observed that the other side
has availed the opportunity of cross-examination of all the
documents referred in the proposed amendment and as such
the amendment, if allowed will not cause prejudice to the
plaintiffs. Besides, it will not change the colour and nature of
the defence raised by the defendants. Even though the
proposed amendment has been carried out at belated stage, no
prejudice is likely to be caused in any manner to the petitioners
/ plaintiffs. Hence the following order :
ORDER
(I) Writ Petition is hereby dismissed.
(II) No costs.
(V. K. JADHAV, J.)
...
vmk/-
