Smt. Shalan Hariram Shinde And Ors vs Ashatai Babaso Patil And Ors
2021 Latest Caselaw 4430 Bom

                                                                         (11) wpst-94055-2020.doc

BDP-SPS

  Bharat
  D.
  Pandit
  Digitally signed
  by Bharat D.
  Pandit
                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION
  Date:
  2021.03.12
  14:38:00 +0530




                                     WRIT PETITION (ST) NO.94055 OF 2020

                     Smt. Shalan Hariram Shinde and Ors.              ...Petitioner(s)
                              V/s
                     Ashatai Babaso Patil and Ors.                     ....Respondent(s)

                     Mr. Ajit M. Savagave for the Petitioners.
                     Mr. Bhooshan Walimbe for the Respondents.


                                          CORAM: NITIN W. SAMBRE, J.

                                          DATE:     MARCH 10, 2021
                     P.C.:-

                     1]       Application-Exhibit-36 taken out by the Petitioners/Appellants in

Regular Civil Appeal No.105 of 2015 seeking amendment to the Plaint

came to be rejected vide order impugned dated10/2/2020 by the

learned District Judge-1, Islampur.

2] Submissions of the learned Counsel for the Petitioners are,

decree in favour of the Petitioners for declaration and injunction is

under challenge in the aforesaid appeal at the behest of Respondents/

Defendants. According to him, in para 15 of the plaint, Petitioners

have already laid a foundation in support of the amended pleadings.

According to him, if amendment is granted, same will not change

(11) wpst-94055-2020.doc

nature of the claim. He would draw support from the judgment of the

Apex Court in the matter of Abdul Rehman & Anr. vs. Mohd. Ruldu &

Ors. reported in 2012 DGLS (SC) 510.

3] Counsel for the Respondents would support the order impugned.

4] As far as nature of amendment as has been sought to be

incorporated by way of insertion is concerned, challenge is to the Sale

Deed dated 10/8/1993 and 30/4/1996. Both these Sale Deeds were

within the knowledge of the Petitioners when they had initiated suit

proceedings. In that view of the matter, embargo under the provisions

of Order 2 Rule 2 CPC will operate against the Petitioners.

5] Apart from above, Petitioners have not satisfied the test of due

diligence. That being so, judgment referred to above will be of hardly

any support. No illegality could be noticed in the order impugned.

Petition as such fails and same stands dismissed.

( NITIN W. SAMBRE, J. )