Bombay High Court
Gokul Panda Talekar Decd Through ... vs Gorakh Narayan Talekar on 4 May, 2022
Bench: Nitin W. Sambre
(14)-IA-2921-22.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally
signed by
WRIT PETITION NO.3778 OF 2010
BALAJI
BALAJI GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL Date:
WITH
2022.05.05
14:17:44
+0530
INTERIM APPLICATION NO.2921 OF 2022
Gorakh Narayan Talekar ..Petitioner
Versus
Gokul Panda Talekar
Since deceased through legal heirs and Ors. ..Respondents
Mr. Surel S. Shah a/w Rahul Kasbekar, Petitioner.
Mr. Ashok R. Metkari, for the Respondent Nos.1(a) to 1(d).
CORAM : NITIN W. SAMBRE, J.
DATE : 4th MAY, 2022
P.C.
1. Rule. The petition is heard finally by consent of parties.
2. This petition is by the defendant to Regular Civil Suit
No.205 of 1995 wherein the respondent/plaintiff has sought
declaration of ownership based on the registered Adoption-Deed
dated 28th August, 1978 and also sought relief of possession of the
suit property.
3. After trial has reached at an advanced stage,
respondent/plaintiff took out an application for amendment of
plaint so as to incorporate a foundation so as to lead secondary
evidence in the matter of lost of the original registered Adoption-
BGP. 1 of 3
(14)-IA-2921-22.doc.
Deed. The said prayer is allowed vide order impugned. As such,
this petition.
4. The submissions of Mr. Surel Shah, counsel appearing
for the petitioner/defendant are, once the suit has reached at an
advanced stage, as respondent/plaintiff has failed to demonstrate
due diligence and in the absence of earlier foundation as regards
lost of original Adoption-Deed, the prayer for amendment ought not
to have been granted.
5. He would further urge that the Court below while
passing order impugned dated 18th March, 2010 was not sensitive to
the very principle to be adopted while dealing with prayer for
amendment, particularly, having regard to the very scheme of
Chapter V i.e. Section 65 of the Evidence Act. Drawing support
from the judgment of the Apex Court in the matter of Jagmail Singh
and Anr. Vs. Karamjit Singh and Ors. reported in (2020) 5 SCC 178,
he would urge that the Court below erred in granting amendment
contrary to the scheme of Section 65 of the Evidence Act.
6. Counsel for the respondent supports the order
impugned.
7. The fact remains that the suit in question being RCS
No.205 of 1995 is pending adjudication pre-amendment to the CPC.
8. In the aforesaid background, principle of due diligence,
in my opinion, cannot be applied to the facts of the case in hand
BGP. 2 of 3
(14)-IA-2921-22.doc.
qua the order impugned. The fact that there exist a registered
Adoption-Deed is specifically pleaded and as such, by taking out
application for amendment of plaint to the extent that original was
lost in a fire and certified copy is permitted to be produced on
record for permission to lead secondary evidence is required to be
appreciated once the respondent/plaintiff is already permitted to
lead secondary evidence. The fact remains that such foundation is
rightly said to be permitted to be led by amendment by passing
amendment by the Trial Court. In this background, it cannot be said
that the issue is covered by the judgment of the Apex Court in the
matter of Jagmail Singh (supra). As such, no case for interference
in the extraordinary jurisdiction of this Court is made out.
9. The petition as such stands dismissed.
10. Pending interim application also stands disposed of.
11. Since the suit has remained stayed for almost twenty
five years, hearing of the same is expedited.
12. It is directed hearing of the suit be concluded within a
period of six months from today.
13. Amendment to be carried out forthwith.
[NITIN W. SAMBRE, J.]
BGP. 3 of 3
