Bombay High Court
Shankar Kachru Handge And Ors vs Vijay Khandrao Pawar And Ors on 23 April, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:18862
Digitally signed
SWAROOP by SWAROOP
SHARAD 28-WP-11276-2024.DOC
SHARAD PHADKE
PHADKE Date: 2025.04.25
21:21:00 +0530
Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11276 OF 2024
1. Shankar Kachru Handge,
Age: 76 years, Occ: Agriculture
2. Mirabai Shankar Handge,
Age: 69 years, Occ: Agriculture
3. Sandeep Shankar Handge
Age: 76 years, Occ: Agriculture ..Petitioners
Nos. 1 to 3, r/at: Chatori,
Tal. Niphad, Dist. Nashik.
Versus
1. Vijay Khandrao Pawar
Age: 62 years, Occ: Agriculture
2. Aditya Ashok Pawar
Age: 31 years, Occ: Agriculture
3. Ujwala Vijay Pawar
Age: 54 years, Occ: Agriculture
All R/A, Chatori, ...Respondents
Tal. Niphad, Dist. Nashik.
Mr. Suresh M. Sabrad, with Neha Zanje and Gracy Saldanha, i/b
Pratik Sabrad, for the Petitioner.
Mr. Girish R. Agarwal, with Naina P. Boraste, for Respondent Nos. 1 to
3.
CORAM: N. J. JAMADAR, J.
DATED : 23rd APRIL 2025
ORAL JUDGMENT:
1. Heard the learned Counsel for the parties.
28-WP-11276-2024.DOC
2. Having regard to the nature of the dispute, Rule. Rule made
returnable forthwith and with the consent of the learned Counsel for
the parties, heard finally at the stage of admission.
3. The challenge in this Petition is to an order dated 24 th June 2024
passed by the learned Civil Judge, Senior Division, Niphad, on an
Application for amendment in the Plaint (Exhibit "26"), whereby the
said Application came to be rejected.
4. The Petitioners-Plaintiffs have instituted a Suit for specific
performance of a contract to sell the property of which the Plaintiffs
were allegedly in unlawful occupation, declaration and injunction,
based on a verbal Agreement for Sale. It is the case of the Plaintiffs that
on 14th February 2020 there was a verbal Agreement for Sale of the suit
property and pursuant thereto the Plaintiffs have parted with
consideration.
5. By filing an Application (Exhibit "26"), the Plaintiffs sought to
incorporate averments in the Plaint to the effect that there was
encumbrance on the suit property to the tune of Rs.4,79,000/- and
Defendant No.1 had agreed to clear the said encumbrance, and, have
the measurement of the property, demarcate the boundaries and
thereafter execute the Sale Deed. Instead, in breach of the said
contractual obligations, Defendant No.1 executed an instrument on 13th
28-WP-11276-2024.DOC
October 2023 in favour of his wife and Defendant No.2, Aditya Pawar.
Hence, there was refusal to perform the contract from the date of the
execution of the said instrument in favour of the wife of Defendant
No.1, and Defendant No.2.
6. By the impugned order, the learned Civil Judge was persuaded to
reject the Application observing inter alia that the case sought to be
pleaded by way of amendment was never pleaded in the original Plaint.
Nor there was any document to substantiate the claim of the Plaintiff as
was sought to be incorporated by way of amendment.
7. Mr. Sabrad, the learned Counsel for the Petitioners, submitted
that the learned Civil Judge approached the controversy from a
completely incorrect perspective. At the stage of consideration of an
Application for amendment in the pleading, the Court is not expected to
delve into the merits of the matter. The impugned order thus deserves
to be interfered with.
8. Mr. Agrawal, the learned Counsel for the Respondents,
endeavoured to support the impugned order. It was submitted that the
Suit is based on a verbal Agreement for Sale. In fact, the Plaintiffs were
found to have committed encroachment over the property of the
Defendant. To pre-empt action of removal of encroachment and eviction
from the encroached portion, the Plaintiffs have filed a Suit based on
the alleged verbal Agreement for Sale. The case now sought to be
28-WP-11276-2024.DOC
pleaded by way of amendment was not asserted in the Plaint originally
filed, even remotely. Therefore, the learned Civil Judge cannot be said
to have committed any error in rejecting the Application for
amendment.
9. I have perused the averments in the Plaint and the text of the
draft amendment sought to be incorporated by way of amendment in
the Plaint. Admittedly, the Suit is for specific performance of verbal
Agreement for Sale. The learned Civil Judge was persuaded to reject the
Application as there was no trace of the case sought to be incorporated
by way of amendment in the Plaint and no document to substantiate the
said claim. The learned Civil Judge, thus, entered into the merits of the
matter and found that there is no reason to allow the amendment.
10. The learned Civil Judge has applied an incorrect test in rejecting
the prayer for amendment. It is trite, all amendments which are
necessary for determination of the real question in the controversy
between the parties are required to be allowed keeping in view the
element of potentiality of prejudice to the opponent. In the case at
hand, the basic case of the Plaintiff that there was a verbal Agreement
for Sale does not get altered. Certain additional terms and conditions,
subject to which the parties allegedly verbally agreed to transfer the
property are sought to be incorporated by way of amendment. Whether
there is credence in those assertions is a matter of adjudication at the
28-WP-11276-2024.DOC
trial. However, at the stage of considering the Application for
amendment, the Court is not expected to delve into the merits of the
matter. Eventually, the Plaintiffs may not succeed in establishing the
case sought to be set up by way of amendment. However, that is not
the test on the touchstone of which the Application for amendment is to
be determined.
11. In any event the amendment was sought at a pre-trial stage. The
Defendants would get an efficacious opportunity to meet the case
sought to be introduced by way of amendment. Therefore, the
impugned order deserves to be interfered with.
12. Hence, the following order:
:ORDER:
(i) The Petition stands allowed.
(ii) The impugned order stands quashed and set
aside.
(iii) The Application (Exhibit "26") stands allowed.
(iv) The Petitioners-Plaintiffs shall carry out the
necessary amendment in accordance with the text of
the draft amendment incorporated in the Application
within a period of three weeks from the date of
uploading of this order and serve it's copy on the
Respondents.
28-WP-11276-2024.DOC
(v) The Respondents will be at liberty to file an
Additional Written Statement within 30 days of being
served with the amended copy of the Plaint.
(vi) All questions are kept open for consideration.
(vii) It is hereby clarified that the observations
hereinabove are confined to determine the legality,
propriety and correctness of the impugned order and
this Court may not be understood to have expressed
any opinion on the merits of the matter.
(viii) In the circumstances, there shall be no order as
to costs.
(ix) Rule is made absolute to the aforesaid extent.
Petition disposed.
[N. J. JAMADAR, J.]
