Shri. Kisanrao Dadabhau Marathe ... vs Sou. Kamal Ramesh Nevse And Ors
2022 Latest Caselaw 35 Bom

                                                                               3 WP-12277-2017.doc

BDP-SPS-TAC



  BHARAT
  DASHARATH
  PANDIT
                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  Digitally signed
  by BHARAT
  DASHARATH
  PANDIT
                                         CIVIL APPELLATE JURISDICTION
                                      WRIT PETITION NO. 12277 OF 2017
  Date: 2022.01.04
  16:31:32 +0530




                                                  ALONGWITH
                                       CIVIL APPLICATION NO.903 OF 2018
                                                       IN
                                      WRIT PETITION NO. 12277 OF 2017


                     SHRI. KISANRAO DADABHAU MARATHE & ORS                    ...Petitioners.
                          V/s
                     SOU. KAMAL RAMESH NEVSE & ORS                            ...Respondents

                     ----
                     Mr. Ashok B. Tajane for the Petitioners
                     Dr. Uday P. Warunjikar for the Respondents.
                     ---

                                          CORAM: NITIN W. SAMBRE, J.

                                           DATE:     JANUARY 03, 2022

                     P.C.:-

                     1]       This Petition is filed by original Defendants in a suit for specific

performance, declaration and injunction questioning the impugned order passed below Exhibit-134-A, granting amendment to the plaint.

2] Submissions of learned Counsel Mr. Tajane appearing for the Petitioners are, time barred claim is permitted to be brought into action by virtue of grant of amendment. He would further urge that earlier, prayer for amendment was rejected and subsequent thereto allowing very same amendment by an unreasoned order is to the

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detriment of the Petitioners. By drawing support from the judgment of the Apex Court in the matter of Khemchand Shankar Choudhari vs Vishnu Hari Patil and Others reported in (1983) 1 SCC 18, he would urge that it is for subsequent purchaser to move for impleadment, otherwise it is not open for the Plaintiff to invoke the provisions of Order VI Rule 17 of the Civil Procedure Code. As such, purchaser is neither necessary nor proper party to the suit.

3] Dr. Warunjikar, learned Counsel appearing on behalf of the Respondents/Plaintiffs opposed the prayer, as according to him, amendment is granted before commencement of trial.

4]    I have appreciated the submissions.


5]    Fact remains that challenge in the suit is to the Sale Deed dated

15/02/2013 and subsequent thereto to the Sale Deed dated 06/04/2016. The suit is based on agreement for sale dated 24/09/1992.

6] Earlier, prayer for amendment even if was rejected, subsequent thereto, same was allowed by the court below which order is not questioned by the Petitioner. As such, said order has attained finality.

7] As far as grant of amendment by virtue of the impugned order passed below Exhibit-134-A is concerned, same is at pre-trial stage, as the trial in the suit is yet to commence. Apart from above, pleadings

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by virtue of amendment are not changing nature of relief claimed in the suit.

8] As such, no case for interference in the extraordinary jurisdiction is made out. Petition stands dismissed.

9] Since the suit is pending for more than 20 years, hearing of the same is expedited.

10] In view of dismissal of the Petition, nothing survives in the pending Civil Application and same is also disposed of.

( NITIN W. SAMBRE, J. )