Bombay High Court
Sau. Vinita W/O Sujit Jaipuriya vs Ashok Amarchand Agrawal And ... on 22 November, 2022
Bench: V. G. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 6052 OF 2022
Sau. Vinita w/o Sujit Jaipuriya
Vs.
Ashok Amarchand Agrawal and Ors.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. P. R. Agrawal, Advocate for petitioner.
CORAM : VINAY JOSHI, J.
DATE : 22.11.2022.
Heard.
2. The petitioner is plaintiff of Special Civil
Suit No.7/2016, which is for partition and separate
possession. The suit was against father and three
sisters. During pendency of suit, the plaintiff has
filed application at Exhibit 43 seeking certain
amendment, which was came to be rejected by the
trial Court vide order dated 29.07.2022, which is the
subject matter of challenge.
3. It is petitioner's contention that
defendant No.1 (father) in his written statement
took a plea that one of the suit property is
bequeathed to him by his father i.e. grandfather of
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the plaintiff. Precisely, the defendant No.1 has
claimed exclusive ownership on the strength of
testamentary document pertaining to one of the suit
property described in paragraph (1)(v) of the plaint.
In consequence, the plaintiff desires to amend the
suit raising challenge to the genuineness of Will and
for that purpose, amendment was sought. The trial
Court has rejected the amendment by holding that
the plaintiff failed to establish due diligence in
seeking amendment.
4. The learned counsel Mr. Agrawal, would
submit that the trial has not commenced, therefore,
the question of due diligence does not arise. He has
attracted my attention to the finding recorded by the
trial Court against point No.1, wherein it is held that
proposed amendment is necessary for the purpose of
determining the real question of controversy. He has
also submitted that the trial Court has recorded
inconsistent findings while rejecting the application.
5. The defendant No.1 has filed written
statement on 19.07.2016, coming with a case of
exclusive ownership of one of the property on the
strength of Will. On the basis of rival pleadings, the
trial Court has formulated issues on 06.11.2017.
One of the issue, at Serial No.3, pertains to the
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property which is claimed to be bequeathed.
Though, the learned trial Court has referred the
decision in the case of Vidyabai and others Vs.
Padmalata and others, 2009 (4) Mh.L.J. 31.
However, in paragraph 15 of the judgment has
observed that trial has commenced. Pertaining to
note that in the same paragraph, it is observed that
the plaintiff has not filed her affidavit of evidence
and therefore, in view of the decision of Supreme
Court in Vidyabai's case, the trial has not
commenced. In such a background, the trial Court
has considered the proviso to Order 6 Rule 17 of the
Code of Civil Procedure, 1908.
6. In view of the above, issue notice,
returnable after three weeks.
7. The trial Court shall not proceed with the
suit till the returnable date.
JUDGE
Signed By:PRITY S GABHANE
Reason:
Location:
Signing Date:23.11.2022 18:39
Prity
