Bombay High Court
Tajuddin Babu Jaina vs Smt. Khatunbi Khudbuddin Jaina ... on 3 May, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6944 OF 2018
[Tajuddin Vs. Khatunbi]
Office Notes, Office Court's or Judge's orders.
Memoranda of Coram,
appearances, Court's
orders or directions and
Registrar's orders
Mr. Vijay Killedar, Advocate a/w. Sumedh S. Modak
for Petitioner.
Mr. Prajakt M. Arjunwadkar, Advocate for
Respondent Nos.1, 3, 4 & 5.
CORAM : SARANG V. KOTWAL, J.
DATE : 3rd MAY, 2023
P.C.:
1. The Petitioner, who is the original Plaintiff, has
challenged the order dated 10.8.2017 passed by the Civil
Judge, Junior Division, Kurundwad in Regular Civil Suit
No.320/2012 passed below Exhibit-60. By the impugned
order, learned Judge partly allowed the Petitioner's application
under O-6 R-17 of CPC for amendment to the plaint. The
Petitioner is aggrieved by the rejected portion of his proposed
amendment.
2. Learned counsel for the Petitioner invited my attention
to the observations made by learned trial Judge in paragraph-7
of the impugned order. The Petitioner wants to bring on record
through amendment to the plaint the fact of execution of the
two documents in the nature of Hibbanama dated 7.12.2012
and 29.12.2012. The suit was filed on 1.12.2012. Learned
Judge observed that the two documents were executed within a
period of one month from filing of the suit and that the
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Petitioner was aware of execution of those documents. The
Petitioner is seeking amendment to the plaint mentioning that
those two documents were illegal and void. However, he did
not seek any specific prayer in respect of those two documents.
The main reason given by learned trial Judge is that the
Petitioner has come up with the case for amendment to the
plaint after five years from execution of those particular
documents; and on that ground the prayer for amendment to
the plaint including the pleadings regarding those two
documents was rejected.
3. Learned counsel for the Petitioner relied on the
observations of the Hon'ble Supreme Court in the case of
Sampath Kumar Vs. Ayyakannu and another1. It was
observed in the said judgment that the question of delay in
moving an application for amendment should be decided not
by calculating the period from the date of institution of the suit
alone but by reference to the stage to which the hearing of the
suit has proceeded. Pre-trial amendments are allowed more
liberally than those sought to be made after the commencement
of the trial or after conclusion thereof. Learned counsel for the
Petitioner submitted that recording of the evidence has not yet
begun and, therefore, the amendment should have been
liberally allowed.
4. Considering these submissions though earlier notices
were issued to the Respondents, some of the Respondents are
still unrepresented and, therefore, fresh notice will have to be
issued. In the meantime, till the next date, learned counsel for
the Petitioner has made out a case for grant of ad-interim relief.
Hence, the following order :
1 (2002) 7 SCC 559
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:: O R D E R ::
i. Issue fresh notice for final disposal to the
Respondents, returnable on 30.8.2023. Shri
Arjunwadkar learned counsel waives service for the
Respondent Nos.1, 3, 4 & 5.
ii. Till the next date, there shall be ad-interim relief in
terms of prayer clause (c).
iii. Stand over to 30.8.2023.
(SARANG V. KOTWAL, J.)
Deshmane (PS)
