Bombay High Court
Ranjit S/O Ratnakar Pande vs Vikas S/O Shankar Gujarmale And Others on 12 September, 2024
2024:BHC-NAG:10568
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2923 OF 2019
Ranjit s/o Ratnakar Pande,
Aged about 40 years,
Occ. - Business/Agriculturist,
R/o 169, Old Subhedar Layout, Nagpur. .... PETITIONER
VERSUS
1) Shri Vikas s/o Shankar Gujarmale,
Aged 32 years, Occ.- Cultivation.
2) Mast. Showrya s/o Vikas Gujarmale,
Aged 4 years, Occ. - Education,
through its Natural Guardian mother
Sou. Vandu @ Pinki w/o Vikas Gujarmale.
3) Smt. Sonabai w/o Shankar Gujarmale,
Aged 52 years, Occ.- Cultivation.
All R/o Tamaswadi, Tahsil-Parsheoni,
District Nagpur.
4) Shri Shankar s/o Yadorao Gujarmale,
Aged 60 years, Occ.- Service,
R/o Tamaswadi, Tahsil - Parsheoni,
District Nagpur. .... RESPONDENTS
______________________________________________________________
Mr. N.S. Deshpande, Advocate for the petitioner,
Mr. G.R. Sadar, Advocate for respondent Nos.1 to 4.
______________________________________________________________
CORAM : ABHAY J. MANTRI, J.
DATED : 12th SEPTEMBER, 2022
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ORAL JUDGMENT :
Rule. Rule is made returnable forthwith and heard by
consent of the learned Advocates for the parties.
2. The petitioner/original defendant No.1 being aggrieved by
the order dated 22-03-2019 passed by the learned Civil Judge, J. D.,
Parsheoni, District Nagpur, whereby allowed the application for
amendment of the plaint.
3. Mr. N. S. Deshpande, learned Advocate for the petitioner,
has vehemently argued that after the closure of the evidence of both
the parties, the plaintiffs moved an application permitting them to
amend the plaint by incorporating the words "partition and separate
possession" in the suit property. He canvassed that the amendment had
changed the nature of the suit. The learned trial Judge has not
considered the said fact; however, solely on the ground that the
proposed amendment would not cause prejudice to the defendant and
would reduce the multiplicity of litigation. Hence, he urged that the
impugned order is illegal and liable to be quashed.
4. Per contra, Mr. Sadar, the learned Advocate for the
respondents, has strenuously argued that the averments in paragraph 7
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of the plaint clearly disclose about carrying out the partition. Therefore,
he has submitted that the impugned order is just and proper and no
interference is required at the hands of this Court.
5. I have appreciated the submissions of the learned
Advocates for both parties and perused the impugned order and record.
6. At the outset, it appears that the respondent-original
plaintiffs initially filed a simpliciter suit for declaration and permanent
injunction. No averment about partition and separate possession of the
suit property appears in the plaint. It is not in dispute that evidence of
both parties was concluded, and the matter was posted for argument.
At that time, the plaintiffs moved an application under Order VI Rule
17 of the Civil Procedure Code to amend the pleadings and the prayer
clause.
7. A bare perusal of the pleadings in the plaint and the
application, it seems that if the plaintiffs are permitted to carry out the
amendment, then certainly it would change the nature of the suit and
cause of action, which is not permissible. Moreover, it is not the case of
the plaintiffs that, in spite of the due diligence, they could not have
added the prayer clause for 'partition and separate possession' of the
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suit property before the commencement of the trial. On that ground
alone, the application for amendment has to be rejected.
8. Perused the impugned order. The trial Court observed that
evidence from both sides had been concluded, and the matter was fixed
for final argument. Despite the said fact, without recording a finding in
respect of proviso to Order VI Rule 17 of the Civil Procedure Code, the
trial Court observed that if the amendment is allowed, it would not
change the nature of the suit and to reduce the multiplicity of
litigation, the same was allowed. The said finding appears to be
contrary to the facts on record. Initially, the plaintiffs filed a simpliciter
suit for declaration and injunction. By way of amendment, the
plaintiffs claim relief of partition and separate possession of the suit
property. The said fact itself clearly shows that if the amendment is
allowed, then certainly the nature of the suit will be changed, and,
therefore, the trial court's findings in that regard are improper and
incorrect. Secondly, neither paragraph No.7 nor the plaint reflects that
the plaintiffs have made an averment that they are claiming the relief
of partition and separate possession of the suit property. Besides, no
pleading appears about the cause of action arising to claim the relief of
partition of the suit property. Therefore, the findings given by the trial
court in that regard also appear contrary to the facts on record. As
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such, based on the said findings, the impugned order cannot be
sustained in the eyes of the law and is liable to be set aside.
9. In this background, I deem it appropriate to allow the
petition. Hence, I pass the following order :
(i) The impugned order dated 22-03-2019 passed below
application Exhibit 56 by the learned Civil Judge, Junior
Division, Parsheoni, District Nagpur, is hereby quashed and
set aside, and the application for amendment is rejected.
(ii) Inform the trial Court accordingly.
10. Rule is made absolute in the aforesaid terms.
( ABHAY J. MANTRI, J.)
adgokar
Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 21/09/2024 16:20:25
