Bombay High Court
Heamnt S/O Jagannath Badwaik vs Suresh Jagannath Badwaik And ... on 7 February, 2023
Bench: Avinash G. Gharote
1 905.WP.316-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 316 OF 2023
( Hemant s/o Jagannath Badwaik
Vs.
Suresh Jagannath Badwaik & Anr. )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. S.P. Kshirsagar, Advocate for the Petitioner.
CORAM: AVINASH G. GHAROTE, J.
DATED : 7th FEBRUARY, 2023
Heard Mr. Kshirsagar, learned counsel for the
petitioner.
2. The petition challenges the order dated
04.11.2022 below Exh. 19 passed by the learned
Appellate Court (page 91), which is an application for
amendment of the plaint filed in appeal at the stage
when the matter was listed for argument, which came to
be rejected. It is contended, that the amendment is
necessary for deciding the nature of the controversy and
though the material ingredients were already in the
plaint, the amendment merely proposes to correct a
situation which was not mentioned in the original plaint
on account of inadvertence. It is therefore submitted,
that the impugned order is liable to be quashed and set
aside and in case the amendment is not allowed, the
2 905.WP.316-2023.odt
petitioner would suffer a great loss. Reliance is placed
upon Vamneshwar Saunsthan Vs. Gajanan Babuso
Sattarker & Ors., 2021 (4) ALL MR 443.
3. The suit filed by the petitioner who was the
original plaintiff, was a suit for possession of land
admeasuring 0.35 HR comprising of the northern half
portion of Gat No. 270 of Mouza Wanjari, Taluka Wani
District Yavatmal as well as for Mandatory and Perpetual
Injunction, Damages and Future Mesne Profits. The suit
came to be dismissed after trial by the judgment dated
15.07.2017 (page 57), in which issue No. 1 (page 61)
reads as under :
"1. Does plaintiff prove that half northern
portion admeasuring 1 H. 21 R A-B-C-D-J-I
was allotted to the defendant and retained
for himself southern half portion I-J-E-F
area 1 H 20 R. in field Gut No.270 ? "
4. The finding recording against the issue
No.1 is in the negative, by holding that the factum of
partition was not proved and the plaintiff/petitioner
therein could not claim exclusive title over the southern
half share.
5. The application for amendment under Order
VI Rule 17 of the Code of Civil Procedure in para 2
states, that due to inadvertence, the mention of the
partition was not made, but in fact in sum substance, the
suit was for partition and the proposed amendment in
fact intended to indicate that position.
6. At the outset, it is material to note, that the
3 905.WP.316-2023.odt
plaintiff/petitioner himself is the person who has
instituted the suit and has gone to trial on the basis of
the plaint averments and cannot now be permitted to
say that the suit was different in nature than what is
indicated in the plaint and has been decided by the
learned Trial Court. If this was the case, this position was
all throughout within the knowledge of the
petitioner/plaintiff, inspite of which, he went ahead with
the trial of the suit, without bothering to take into
consideration that any correction was required. It is thus
apparent, that the amendment which is now sought to be
incorporated, was throughout available to the petitioner
even before filing of the suit, and therefore, is something
which cannot now be permitted to brought on record, as
the same would not only cause prejudice to the
respondents but would also irretrievably change the
nature of the suit itself. Though Vamneshwar Saunsthan
(supra), has pressed into service, it considers a position
where the application under Order VI Rule 17 of the
Code of Civil Procedure and the one under Order XLI
Rule 27 of the Code of Civil Procedure, has been directed
to be considered at the time of final hearing. In the
instant case, I do not see any materiel available on record
or for that matter any reason to direct so, for the reasons
stated above. In Life Insurance Corporation of India Vs.
Sanjeev Builders Private Limited and another, 2022 SCC
OnLine 1128 in para 70 (x), the Hon'ble Apex Court was
considering a situation where the application for
amendment of the plaint filed, when the suit was still
pending, has been considered. In the instant case, the
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suit has already been decided and the application has
been filed at the stage of final arguments, which clearly
appears to be with an intention to prolong the decision of
the appeal. In view of what has been stated above, I do
not see any reason or ground to interfere in the
impugned order.
7. The Petition is therefore dismissed. No
costs.
JUDGE
SD. Bhimte
Signed By:SHRIKANT
DAMODHAR BHIMTE
Signing Date:08.02.2023 18:30
