Bombay High Court
Dilip S/O Uttamrao Chhabile And Others vs Pandharinath S/O Narayan Deokar And ... on 11 August, 2025
2025:BHC-NAG:7960
J-wp2066.25.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.2066 OF 2025
1. Dilip s/o. Uttamrao Chhabile,
Aged 65 years, Occupation : Agriculture.
2. Ravindra s/o. Dilip Chhabile,
Aged 36 years, Occupation : Doctor.
3. Shubham s/o. Dilip Chhabile,
Aged 30 years, Occupation : Student.
All above mentioned petitioners are
R/o. Teacher Colony, Mehkar,
Tq. Mehkar, Distt. Buldhana. : PETITIONERS
...VERSUS...
1. Pandharinath s/o. Narayan Deokar,
Aged 68 years, Occupation : Agriculture.
2. Sakharam s/o. Narayan Deokar,
Aged 77 years, Occupation : Agriculture.
3. Deorao s/o.Narayan Deokar,
Aged 72 years, Occupation : Agriculture.
4. Kisan s/o. Narayan Deokar,
Aged 86 years, Occupation : Agriculture.
5. Waman s/o. Narayan Deokar,
Aged 82 years, Occupation : Agriculture.
All respondents above are R/o.
Nemtapur, At Post Kalyana,
Tq. Mehkar, Distt. Buldhana,
Maharashtra - 443 301. : RESPONDENTS
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Mrs. R.G. Bajaj, Advocate for Petitioners.
Mr. V.K. Paliwal, Advocate for Respondents.
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J-wp2066.25.odt 2/8
CORAM : PRAFULLA S. KHUBALKAR, J.
DATE : 11th AUGUST, 2025.
ORAL JUDGMENT :
1. Heard. Rule. Rule made returnable forthwith. Heard
finally with consent of learned counsel appearing for the parties.
2. The petitioners have challenged order dated 13.1.2025
passed by the trial Court rejecting their application under Order VI
Rule 17 of the Code of Civil Procedure seeking amendment to the
plaint.
3. Mrs. R.G. Bajaj, learned counsel for petitioners
submitted that the petitioners are the original plaintiffs who had
filed suit for removal of encroachment and possession by
contending that the defendants have committed encroachment over
the suit property bearing Gat No.6, situated at Mouza Erondali,
Taluka Mehkar, District Buldana. It is pointed out that in the plaint
the plaintiffs have mentioned the details of the suit property and
even the total boundaries of property owned by the plaintiff Nos.1
to 3. The suit came to be dismissed by judgment and decree dated
28.08.2014. The plaintiffs/petitioners then challenged the decree
by Regular Civil Appeal No.97/2019, which came to be allowed and
the matter was remanded to the trial Court. It is submitted that
while remanding the suit the Appellate Court issued specific
directions for appointment of Court Commissioner, for fresh joint
measurement, fresh demarcation of boundaries of the properties
and framing of additional issues and recording of additional
evidence, if necessary, as mentioned in the operative part of the
order passed by the Appellate Court.
4. Learned counsel for petitioner submitted that in view of
the remand of the suit to decide the issue of encroachment on the
basis of fresh measurement and demarcation of boundaries, the
plaintiffs filed application under Order VI Rule 17 of the Civil
Procedure Code for amendment seeking to incorporate the
boundaries of the properties owned by the plaintiff Nos.1 to 3. It is
submitted that by this amendment the details of the boundaries are
only sought to be mentioned and since there is no addition of any
separate cause of action or prayer clause, the mention of
boundaries by way of amendment was necessary for deciding the
real controversy involved in the suit. The application was opposed
by the defendants on the ground that the amendment was filed
belatedly and it sought to introduce new factual aspects. The trial
Court rejected the application by order dated 13.1.2025, by
observing that the boundaries could have been mentioned in the
original plaint and the amendment if allowed, would violate the
rights of the defendants.
5. Learned counsel for the petitioners submitted that the
proposed amendment is an attempt to only mention boundaries of
the suit property and in view of the elaborate directions by the
Appellate Court while remanding the civil suit it became necessary
for the plaintiffs to state specifically the boundaries of the suit
properties so that the actual controversy involved in the suit could
be decided. In support of her submissions she relied upon the
judgment of the Hon'ble Supreme Court in the matter of Dinesh
Goyal alias Pappu vs. Suman Agarwal (Bindal) and others, reported
in 2024 SCC OnLine SC 2615. While adverting attention of this
Court to this judgement it is submitted that by way of proposed
amendment the plaintiffs are intending to rectify the absence of
material particulars in the plaint and in view of the position of law,
the same ought to have been allowed.
6. Per contra, Mr. V.K. Paliwal, learned counsel for the
respondents strongly opposed the petition. He vehemently
submitted that by way of amendment the plaintiffs are introducing
new facts which could have been stated in the plaint and, therefore,
it is submitted that the boundaries will change the area of the suit
property and the amendment cannot be permitted. He also
submitted that the Appellate Court had remanded suit only for the
purpose of fresh joint measurement through Court Commissioner
and the addition of particulars in the plaint will change the nature
of the suit.
7. While considering rival contentions, it has to be seen
that the Appellate Court had remanded the suit by specifically
directing the trial Court to decide the suit after fresh joint
measurement through Court Commissioner and the following
directions amongst others are mentioned in the judgment of the
Appellate Court.
"03. Case is remanded back to
the learned C.J.J.D. Mehkar for carrying out
fresh joint measurement of the suit properties
and property of the defendants by appointing
Court Commissioner i.e. competent Government
official from the office of T.I.L.R. having
jurisdiction over the suit properties.
05. The plaintiffs are directed
to file application for carrying out fresh
measurement within two weeks from the date of
their appearance before learned C.J.J.D. Mehkar
and pay the charges of measurement fees of the
Court Commissioner as per rules.
06. The learned C.J.J.D.
Mehkar shall direct the Court Commissioner to
carry out the measurement as per Order 26 Rule
9 of the Code of Civil Procedure, after serving
notices on both the parties and neighboring field
owners if any, by obtaining title deeds, 7/12
extracts relating to the properties of both the
parties, relevant records in respect of road which
has gone through and adjacent to the fields of
both the parties and shall demarcate the
boundaries of their properties by noting down
actual measurement in the joint measurement
map and by noting encroachment, if any.
10. The learned C.J.J.D.
Mehkar is directed to decide the matter afresh
by considering all relevant record, report, map of
joint measurement submitted by the Court
Commissioner and objection if any by framing
additional issues and recording evidence in
addition to oral and documentary evidence
which is already on record."
8. In view of specific directions issued by the Appellate
Court while remanding the civil suit it is clear that fresh
measurements were directed to be conducted by the Court
Commissioner and it is specifically observed that the Commissioner
shall demarcate the boundaries of their properties by noting down
actual measurement in the joint measurement map and by noting
encroachment if any. It is also directed that the trial Court shall
decide the matter afresh by considering all relevant record, report,
map of joint measurement submitted by the Court Commissioner
and objections if any, by framing additional issues and recording
evidence in addition to oral and documentary evidence which is
already on record. Thus, it becomes clear that the mention of
boundaries in the suit property became very vital for deciding the
real controversy involved in the suit. In view of this, if the proposed
amendment is seen, the plaintiffs are proposing to mention the
boundaries of their respective properties and no other amendment
in the nature of changing the cause of action or introducing new
prayer is made.
9. As regards the contentions raised by the respondents
that mentioning of new boundaries cannot be permitted as it may
amount to change in the nature of the dispute. It is relevant to note
that the plaintiff has earlier stated the total boundaries in the plaint
and now by way of amendment the details of boundaries of each of
the properties are only specified. It has to be seen that in view of
the specific directions of the Appellate Court mention of specific
boundaries will assist the Court to arrive at proper conclusion with
respect to alleged encroachment. The objection of the respondent
that in the garb of mentioning boundaries an attempt is made to
introduce new facts, cannot be sustained since the defendants are
are entitled for conducting cross-examination after the joint
measurement is carried out by the Commissioner. It is profitable to
refer to the position of law as laid down in the judgment of the
Hon'ble Supreme Court in Dinesh Goyal (supra), stating general
principles, relevant part of which from para 11 is reproduced
below :
"(iv) Some general principles to be kept in mind are -
(I) The court should avoid a hyper-
technical approach; ordinarily be liberal,
especially when the opposite party can be
compensated by costs.
(II) Amendment may be justifiably
allowed where it is intended to rectify
the absence of material particulars in the
plaint or introduce an additional or a
new approach.
(III) The amendment should not change
the cause of action, so as to set up an
entirely new case, foreign to the case set
up in the plaint."
10. On consideration of submissions canvassed by both the
parties, I am of the considered view that mention of boundaries by
way of amendment does not amount to change in nature of the suit
much less introduction of new cause of action or new reliefs. The
clarification of boundaries in the plaint will assist the Court in
resolving the real controversy involved in the suit. As such, the
reliance placed on the judgment in the matter of Dinesh Goyal alias
Pappu (supra) appears to be appropriate.
11. In view of the factual and legal aspects, the writ petition
is allowed. The impugned order deserves to be quashed and set
aside. The order dated 13.01.2025 passed by the Civil Judge,
Junior Division, Mehkar on Application at Exhibit-93 is quashed and
set aside. The application filed by the plaintiffs seeking amendment
at Exhibit-93 is allowed.
12. No order as to costs.
(PRAFULLA S. KHUBALKAR. J.)
okMksns
Signed by: Mr. Devendra Wadode
Designation: PS To Honourable Judge
Date: 13/08/2025 18:12:45
