Narayan Kishanrao Talekar And ... vs Shaikh Idris Shaikh Samad And ...
2022 Latest Caselaw 7587 Bom

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                        WRIT PETITION NO. 237 OF 2020

1.     Narayan Kishanrao Talekar
       age 48 years, occ. Service
       r/o Bhokardan, Tq. Bhokardan
       Dist. Jalna.

2.     Ravindra Madhukarrao Deshpande
       age 57 years, occ. Agri.
       r/o Near Khandoba Mandir, Bhokardan
       Tq. Bhokardan, Dist. Jalna.                           Petitioners

       Versus

1.     Shaikh Idris Shaikh Samad
       age 38 years, occ. Business
       r/o Rafq Colony, Bhokardan
       Tq. Bhokardan, Dist. Jalna.

2.     Chief Executive Offcer
       Nagar Parishad, Bhokardan
       Tq. Bhokardan, Dist. Jalna                            Respondents


Mr. A. S. Kulkarni, Advocate holding for Mr. J. V. Deshpande ,
Advocate for the petitioner.
Mr. A. S. Mantri, Advocate for respondent No. 1.
Mrs. A. A. Puranik and G. G. Ingle, Advocate for respondent No. 2.

                                  CORAM : M.G. Sewlikar, J.

                                  DATE    : 3rd AUGUST, 2022.


ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith.

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2. With the consent of the parties, heard fnally at the stage

of admission.

3. Facts in brief are that, respondent No. 1 fled a suit for

perpetual injunction against petitioners and respondent No. 2.

During the pendency of this suit i.e. RCS No. 29/2014, plaintiff -

respondent No. 1 herein fled an application for amendment thereby

seeking addition of prayer of declaration of ownership. By the same

application, he sought leave to add respondent No. 3 as party to the

suit.

4. This application was opposed by petitioners.

5. Learned Trial Court allowed the application for

amendment and added petitioner No. 1 as defendant No. 3 to the

suit. This order is impugned in this petition.

6. Learned counsel for petitioner submits that the original

suit was for perpetual injunction. It has been converted into a suit

for declaration of ownership. By amendment, the nature of the suit

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has been changed.

7. Learned counsel for respondent No. 1 submits that the

suit was fled on 25th February, 2014 and on the same day, petitioner

No. 2 executed sale-deed in favour of petitioner No. 1. Respondent

No. 1 was not aware of this transaction. Therefore, being ignorant of

this transaction, the suit for perpetual injunction came to be fled.

8. Learned counsel for petitioners does not dispute this

position. Respondent No. 1 was not aware of the sale-deed having

been executed by petitioner No. 2 in favour of petitioner No. 1 as the

date of fling of the suit and the date of said transaction are the

same. Therefore, the amendment has been correctly allowed by the

learned Trial Court. No fault can be found with this order.

9. Learned counsel for petitioner submits that petitioner No.

1 has been added in personal capacity. Learned counsel for

respondent No. 1 submits that he ought to have been added as the

Secretary of the Devsthan. She seeks leave to correct and add

Devsthan as party. Leave granted.

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10. Learned counsel for petitioner submits that when this

matter was heard on 7th January, 2020, he had made a statement

that he would not make any grievance at any point of time. He

clarifes that this order was passed as petitioner No. 1 was added in

personal capacity. The said statement would not be binding on him.

If the correction is carried out, this statement will not come in the

way of petitioners No. 1 and defendant No. 3 as defendant No. 3 was

not made a party on behalf of the Devsthan.

11. In view of this, the petition has no substance. Hence, it

is dismissed.

( M. G. SEWLIKAR ) Judge

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