Bombay High Court
Kacharu S/O Wasudeo Gorle vs Shri Wasudeo S/O Shrawan Gorle ... on 2 March, 2021
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 3634 OF 2017
PETITIONER : Kacharu S/o Wasudeo Gorle,
Aged about 32 years, Occu. Cultivator,
R/o Ambadi, Tah. Kuhi, Dist. Nagpur.
VERSUS
RESPONDENTS : 1. Wasudeo S/o Shrawan Gorle
(Dead, Through LRs)
1.a Rushideo S/o Wasudeo Gorle,
Aged about 50 years, Occu. Cultivator,
R/o Ambadi, Tah. Kuhi, Dist. Nagpur.
1.b. Sau. Bindhabai W/o Sudhakar Wankhede,
Aged about 40 years, Occu. Labourer,
R/o Kesuri (Ambadi), Tah. Kuhi, Dist. Nagpur.
1.c. Arun S/o Parasram Gorle,
Aged about 55 years, Occu. Cultivator,
R/o Ambadi, Tah. Kuhi, Dist. Nagpur.
1.d. Smt. Bhulabai Wd/o Wasudeo Gorle (Dead)
2. Arun S/o Parasram Gorle,
Aged about 55 years, Occu. Cultivator,
R/o Ambadi, Tah. Kuhi, Dist. Nagpur.
3. Nilkantha S/oBhaduji Thakare,
Aged about 55 years, Occu. Cultivator,
R/o Juni Vasti, Jaitala, Post Ambazari,
Near School of Zade and Gowari Hardware,
Zade Layout, Nagpur, Tah. & dist. Nagpur.
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Mrs. M. N. Hiwase, Advocate for the petitioner
Mr. K. B. Ambilwade, Advocate for the respondents
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CORAM : V. M. DESHPANDE, J.
DATE : MARCH 02, 2021.
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ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard finally
by consent of the learned counsel for the parties.
2. Heard Mrs. M.N.Hiwase, learned counsel for the
petitioner and Mr. K.B. Ambilwade, learned counsel for the
respondents.
3. The petitioner is the original plaintiff. He filed a suit
bearing Regular Civil Suit No. 05 of 2013 for declaration and
permanent injunction against his father Wasudeo Gorle and brother
Arun Gorle and claimed decree that he is having 1/4 th share in the
suit fields situated at village Ambadi and Kamptee. The suit was
contested by the defendants by filing written statement.
4. The petitioner/plaintiff thereafter filed an application
(Exh.59) under Order VI Rule 17 of the Code of Civil Procedure for
amendment. By filing this application for amendment, it was pleaded
that during pendency of the suit, defendant no.1/father of the
plaintiff, executed a Sale Deed in respect of the field Gat No. 204/1 in
favour of defendant no.3 - Nilkanth Thakare. During pendency of the
suit, Wasudeo Gorle passed away. Therefore, his other legal
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representatives were also brought on record. It was also pointed out
that defendant no.3 Nilkanth, in view of the registered Sale Deed
dated 12.03.2003 in his favour by original defendant Wasudeo, filed a
suit for injunction. The plaintiffs therefore, filed a detailed
application for amendment (Exh.P-59). The application was
contested and the learned Joint Civil Judge, Junior Division, Kuhi vide
order dated 25.11.2009, allowed the application for amendment filed
on behalf of the plaintiff, subject to payment of costs of Rs.300/-.
After allowing amendment to the plaint, the defendants filed an
application (Exh.61) under Order VI Rule 17 read with Section 151 of
the Code of Civil Procedure for consequential amendment in their
written statement. The said was also allowed. Accordingly, the
amendment in written statement was carried out.
5. It is submitted before this Court that thereafter the
parties adduced their respective evidence including in respect of the
pleadings made by the plaintiff in the application for amendment and
the case was fixed for final arguments. At that time, it was noticed by
the learned counsel for the plaintiff that though the application for
amendment filed by him was allowed, the amendment was remained
to be carried out. Therefore, the plaintiff filed an application
(Exh.145) seeking permission to place amended copy of the plaint on
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record in view of the order dated 25.11.2009 by which the application
for amendment (Exh.59) was allowed. The said application
(Exh.145) is rejected by the learned Civil Judge, Junior Division, Kuhi
on 19.04.2017 on the ground of delay. Hence, this writ petition.
6. Mr. K.B. Ambilwade, learned counsel for the respondents
fairly states that the amendment application was allowed by the
learned Judge of the trial Court on 25.11.2009. Not only that, the
defendants received the costs as directed in the order dated
25.11.2009. It is to be noted that thereafter the defendants also filed
an application for amendment to the written statement. The said
application was also allowed and the amendment in the written
statement was carried out. Also, it is an admitted position that both,
the plaintiff as well as the defendants, were allowed to adduce
evidence even in respect of the amended pleadings those were not
carried out in the plaint and the case was thereafter kept for final
hearing.
7. In the aforesaid circumstances, I am of the view that the
counsel for the plaintiff was most negligent in not carrying out the
amendment in the plaint as per the order dated 25.11.2009. In my
view, since the amendment was allowed and it was not challenged,
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what remained was only the ministerial act of carrying out
amendment in the plaint which remained to be done by the counsel
for the plaintiff. Surely, it was the duty of the counsel for the plaintiff
and not of the plaintiff to carry out the amendment. Hence, for fault
of an Advocate of the plaintiff, the plaintiff need not suffer. Hence, I
pass the following order :
ORDER
1. The writ petition is allowed.
2. The order passed by the learned Civil Judge, Junior
Division, Kuhi below Exh.145 in Regular Civil Suit No.
05 of 2003, is hereby quashed and set aside, subject to
payment of costs of Rs.5,000/- to the respondents
within a period of two weeks from today.
3. Mr. K.B. Ambilwade, learned counsel for the
respondents is permitted to accept the costs of
Rs.5,000/- from the counsel for the petitioner, for and
on behalf of the respondents and shall pass a valid
receipt for the same.
4. The plaintiff is permitted to carry out amendment in
the plaint as per order dated 25.11.2009 below Exh.59
5. The writ petition is disposed of. Rule is made absolute.
V. M. DESHPANDE, J.
Diwale
