Bombay High Court
Shankarappa S/O Mahadeoappa ... vs Shantabai W/O Kisanappa Chaware ... on 11 October, 2021
Bench: Avinash G. Gharote
Judgment 1 wp291.20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 291/2020
Shankarappa S/o Mahadeoappa Chaware,
Aged about 73 years, Occ. Retired & Cultivator,
R/o. Dharamkata, Near Petrol Pump, Vasmat
Nanded Road, Tah. Vasmat, District Hingoli
.... PETITIONER(S)
// VERSUS //
1] Shantabai W/o Kisanappa Chaware,
Aged about 55 years, Occ. Housewife,
R/o. Asegaon Pen, At present Datta Nagar,
Near Water Tank, Risod, Tah. Risod, District Washim
2] Jagannathappa S/o Laxmanappa Chaware,
(Dead), Through his legal heirs
a) Godawari W/o Jagannathappa Chaware,
Aged about 56 years, Occ. Housewife,
R/o Asegaon Pen, Tah. Risod, District Washim
b) Sunil S/o Jagannathappa Chaware,
Aged 40 years, Occ. Cultivator,
R/o. Asegaon Pen, Tah. Risod, District Washim
c) Sushant S/o Jaganathappa Chaware,
Aged about 37 years, Occ. Cultivator,
R/o. Asegaon Pen, Tah. Risod, District Washim
d) Sangita W/o Umesh Bendre,
Aged about 30 years, Occ. Housewife,
R/o. Mohagaon, Tah. Mehkar, District Buldhana
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Judgment 2 wp291.20.odt
e) Savita W/o Ganesh Bhandare,
Aged 28 years, Occ. Housewife,
R/o. Gargavan, Tah. Hadgaon, District Nanded
3] Shivhar S/o Vaijnathappa Chaware,
Aged 57 years, Occ. Cultivator,
4] Ranganath S/o Vaijnathappa Chaware,
Aged about 50 years, Occ. Cultivator,
Res. Nos. 3 & 4 are R/o. Asegaon Pen,
Tah. Risod, District Washim
5] Shobha W/o Shriramappa Kodare,
Aged about 53 years, Occ. Housewife,
R/o Eroli, Tah. Jintur, District Parbhani
6] Sadhana W/o Mahadeoappa Adhalkar,
Aged about 47 years, Occ. Housewife,
R/o. Lohare, Post Digras, Tah. & Dist. Hingoli
7] Vandana W/o Sudhakarappa Thlakari,
Aged about 45 years, Occ. Household,
R/o. Bamani, Tah. Jintur, District Parbhani
8] Renuka W/o Malikaarjun Jatale,
Aged about 22 years, Occ. Household
R/o. Datta Nagar, Near Water Tank,
Risod, Tah. Risod, District Washim
9] Annapurna W/o Chandkumar Nandkule,
Aged about 65 years, Occ. Household
R/o. Pen Bori, Post Linga, Tah. Risod District Washim
.... RESPONDENT(S)
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Judgment 3 wp291.20.odt
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Shri R.D. Dhande, Advocate for the petitioner(s)
Shri J.B. Gandhi, Advocate for the respondent no. 1
*******************************************************************
CORAM : AVINASH G. GHAROTE, J.
OCTOBER 11, 2021
ORAL JUDGMENT :
1] Heard Shri R.D. Dhande, learned counsel for the petitioner
& Shri J.B. Gandhi, learned counsel for the respondent no. 1.
2] RULE. Rule made returnable forthwith. Heard finally by
consent of the learned counsels appearing for the parties.
3] Mr. Dhande, learned counsel for the petitioner contends that
the application for amendment, seeking to add properties, in the written
statement to the counter claim has been filed, at a stage when the
evidence of the defendants in the counter claim was over and the
proceedings were at a stage of cross-examination of DW-3 on behalf of
the defendant no. 10, who had filed the counter claim and therefore the
amendment at the stage, for insertion of new properties, was clearly not
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tenable. Inviting my attention to the impugned order, he submits that the
basis on which the application has been allowed itself is untenable, as is
reflected from Para 5 of the impugned order, which gives the reason for
allowing the amendment, as being based upon a question of law.
4] Mr. Gandhi, learned counsel for the original plaintiff /
respondent no. 1 in the counter claim, submits that the information
about the property, sought to be added, was disclosed in the cross-
examination of the petitioner in the counter claim, on account of which
the application was necessitated.
5] It is material to note, that though the defendant no. 7 /
original plaintiff has filed a suit for partition and separate possession, he
never included the said property, in the schedule of the properties, in
respect of which a claim of partition was laid by the plaintiff / defendant
no. 7. To say that now, in the cross-examination of the petitioner /
defendant no. 10, the same has been disclosed, is infact is a position
contrary to his own pleadings. It is therefore apparent, that merely
because a suggestion has been put in the cross-examination, regarding
non inclusion of the properties, the same cannot form the basis for an
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amendment, more-so at the belated stage. There is no question of law as
is found by the learned Trial Court. The application, therefore, in my
considered opinion, was not tenable, considering the stage at which it was
filed and for the reason it was filed. The impugned order therefore, is
clearly unsustainable in law. The same, is therefore, quashed and set
aside. The application for amendment is rejected.
Rule is made absolute in the above terms. Pending
application(s), if any, stand(s) disposed of.
(JUDGE)
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