Bombay High Court
Bapurao S/O Namdevrao Kodape vs Smt. Laxmi W/O Abhiman Kove And ... on 17 March, 2023
Bench: Avinash G. Gharote
(1) 940wp5596.21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 5596 OF 2021
Bapurao Namdevrao Kodape __ Vs. ___Laxmi Abhiman Kove and ors
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. K.J.Topale, Advocate for petitioner
Mr. D.U.Thakare, Advocate for respondent Nos. 1 to 7
Mrs.M.A.Barabde, AGP for respondent Nos. 8 & 9
CORAM : AVINASH G. GHAROTE, J.
DATE : 17/03/2023
1] Heard Mr. Topale, learned counsel for the
petitioner and Mr. Thakare, learned counsel for
respondent nos. 1 to 7.
2] The petition questions the order dated
7.7.2020 passed by the learned trial Court, whereby
the application for amendment of the plaint filed at
the stage when the evidence of PW-2 was over, has
been allowed. (pg.56).
3] Mr. Topale, learned counsel for the
petitioner submits that considering the stage, though
the proviso to Order VI Rule 17 of the CPC became
attracted, the learned trial Court in the impugned
order has not taken the same into consideration at
all; the amendment, according to him, has been also
(2) 940wp5596.21
filed to nullify the admission given by PW-1 in his
cross examination regarding the possession being
with the defendant no.4 since last more than 17 to
18 years; that the plea regarding possession was
available to the plaintiff even before filing of the
suit, which is indicated from an averments in para 7
of the plaint (pg.13) and therefore relying upon
Pandit Malhari Mahale vrs. Monika Pandit Mahale,
2021 (3) ALL MR 702 (SC), it is submitted that the
amendment ought not to be permitted.
4] Mr. Thakare, learned counsel for the
respondent nos. 1 to 7 relies upon M/s Kanmani
Films vrs. G.K.Kutt, AIR 1969 MYSORE 259 to
contend that the grant of amendment is the
discretion of the Court and the same having been
exercised by the learned trial Court, it ought not to
be interfered with.
5] The proposed amendment seeks to claim
a relief of possession of the suit property. Para 7 of
the plaint itself indicates that the plaintiff was aware
even before filing of the suit that the property was in
possession of the defendant no.4/petitioner, inspite
of which the relief of possession was not claimed in
the plaint. During his cross examination, the plaintiff
(3) 940wp5596.21
/PW-1 has given a categoric admission that the
defendant no.4/petitioner was in possession of the
suit property since last more 17-18 years. In LIC vrs.
Sanjeev Builders Pvt. Ltd, 2022 SCC Online SC
1128, the Hon'ble Apex Court while laying down the
law regarding Order VI Rule 17 of the CPC, has
categorically held that the amendment should not be
allowed in case it seeks to withdraw or nullify a
clear cut admission made by the party, which confers
right on the otherside, nor a time barred claim
should be permitted to be allowed to be raised by
the amendment. In view of the said position, since
there is a clear cut admission given by the plaintiff in
his cross-examination (pg.40) as indicated above, it
indicates a position in existence even before the
filing of the suit to the knowledge of the plaintiff,
which is substantiated by para 7 of the plaint, in
view of which the proviso to Order VI Rule 17 of the
CPC clearly becomes attracted and unless and until
the requirement was satisfied, the amendment could
not have been allowed. The application at Exh.83,
does not spell out the satisfaction of the requirement
of due diligence, nor does the impugned order spell
out consideration of the same. M/s Kanmani Films
(supra) relied upon by the Mr.Thakare, learned
(4) 940wp5596.21
counsel for the respondents is a pre-amendment
judgment and therefore would not be attracted.
6] In that view of the matter the impugned
order dated 7.7.2020 cannot be sustained and
therefore, the same is hereby quashed and set aside
and the application below Exh. 83 is dismissed. No
costs.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:17.03.2023 18:30
