Bombay High Court
Smt. Motibai Kacher Thakur Decd ... vs Mr. Laxman Hashya Thakur And Ors on 17 April, 2023
Bench: S. V. Kotwal
2023:BHC-AS:12000
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2579 OF 2020
Motibai Kachet Thakur (since deceased)
through legal heirs
Vilas Kacher Thakur & Ors. .... Petitioners
versus
Laxman Hashya Thakur & Ors. .... Respondents
.......
• Mr. Rohan Kaiche a/w Mr. Sachin Ramrao Pawar, Advocate for
Petitioner.
CORAM : SARANG V. KOTWAL, J.
DATE : 17th APRIL 2023
P.C. :
1. Heard Mr. Rohan Kaiche, learned counsel for the
Petitioners.
2. The Petitioners have challenged the order dated
27/03/2019 passed below Ex.10 in Regular Civil Appeal No.157
of 2015 passed by Ad-Hoc District Judge-4, Thane. The
Petitioners and their predecessors have filed Regular Civil Suit
No.106 of 2011 before the 2nd Joint Civil Judge, Senior Division,
Nesarikar
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Thane on 14/02/2011 for partition of the properties which are
described in paragraph No.1 of the plaint annexed at Ex.B to this
Petition. The said suit was dismissed vide Judgment and Decree
dated 29/11/2014 by the learned Trial Judge. That order was
challenged before the District Court at Thane, vide Regular Civil
Appeal No.157/2015. In that Appeal, an application was made
under Order VI Rule 17 by the Plaintiffs.
3. The amendment was sought as follows ;
For inclusion of the survey No.113/2020 at Ovla,
Survey No.29/3 at Ovla. In both these lands, the
area was sought to be amended.
4. The Petitioners wanted to include the survey No.41/1
at Mogharpada in the list of properties and also wanted to
correct the survey No.131/1 at Ovla as it was sub-divided as
131/1/A and 131/1/B. This amendment application was
rejected by the Ad-Hoc District Judge-4, Thane, vide his
impugned order dated 27/03/2019.
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5. Learned counsel for the Petitioners submitted that it is
necessary to amend the plaint so that correct description of all
the properties would be included and no prejudice would be
caused to the Original Defendants.
6. I have considered these submissions and I have also
perused impugned order. In the said order, learned Appellate
Judge has held that the Petitioners had not produced any record
or document to show that any property bearing Survey No.41/1
is in existence. He has not produced any record to show that the
survey No.131/1 is sub-divided into two parts and no
documents are produced to show that area of the survey
No.113/20 and 129/3 is wrongly mentioned. On this basis, the
application was rejected.
7. I have perused that original application. In that
application itself there are some incorrect statements. In
paragraph No.3 it is mentioned that survey No.113/20 at Ovla
was not mentioned in the suit. This fact is not correct. The said
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survey No. is already mentioned in the plaint. In the said
application it is further mentioned that survey No.29/3 at Ovla
is already mentioned in the plaint. However, no such survey is
mentioned in the plaint. The actual survey No. is 129/3, is
mentioned in the plaint. Thus even the amendment application
is not made with correct description of the properties.
8. Learned counsel for the Petitioners could not point out
as to why all these amendments were not made at least during
pendency of the suit itself. The suit was filed in the year 2011.
After much delay for the first time, in the Appeal, this
amendment to the plaint is sought to be made. There is nothing
to show that that Petitioners acted with due diligence. Even the
amendment sought are not properly described. Learned Judge
has given sufficient reasons for rejecting the application. I do not
see any reason to take a different view. Consequently, the
Petition is dismissed.
(SARANG V. KOTWAL, J.)
