Bombay High Court
Dinesh S/O. Chhotelal Jaiswal vs Harishankar Shrinarayan Gupta (Dead) ... on 19 August, 2025
2025:BHC-NAG:8323
wp4921.23.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4921 OF 2023
Shri Dinesh s/o Chhotelal Jaiswal
Aged about 70 Years, Occu.Business,
R/o Parsioni, Dist. - Nagpur ... Petitioner
Versus
1. Harishankar Shrinarayan Gupta (Dead)
Through his legal heirs-
1-a. Smt.Rajkumari Harishankar Gupta
Aged about 75 Years, Occu.Business,
1-b. Shri Rakesh S/o Harishankar Gupta
Aged about 57 Years, Occu.Business,
1-c. Shri Pankaj S/o Harishankar Gupta
Aged about 55 Years, Occu. Advocate,
1-d. Shri Amit S/o Harishankar Gupta
Aged about 53 Years, Occu. Business,
R/o Gud-Oli, Kamptee, Dist. Nagpur.
2. Smt. Babibai W/o Babanrao Akone
Aged about 50 Years, Occu.Farming,
R/o Pipri-Kanhan, Tah. Parseoni
Dist.-Nagpur.
3. Smt. Munnaibai w/o Niranjan Panvosha
Aged about 48 Years, Occu.not known,
R/o Pipri-Kiriya, Tah. Thaniyadhana,
Dist. Shivpuri.
4. Shri Baban S/o Raghunath Pahade (deleted)
5. Shri uttamchand S/o Pilaji Dhoble
Aged-Major, Occu.not known,
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R/o Parsioni, Dist.-Nagpur .Respondents
....
Mr. N.G.Jetha, Advocate for petitioner.
Mr. P.P.Kothari, Advocate for respondent no.1-c.
None for other respondents.
...
CORAM : PRAFULLA S. KHUBALKAR, J.
DATE : 19th AUGUST, 2025.
ORAL JUDGMENT
1 Heard Mr. N.G.Jetha, learned counsel for the petitioner
and Mr. P.P.Kothari, learned counsel for the respondent no.1-c.
2. Rule. Rule made returnable forthwith. Heard finally by
consent of the parties.
3. The petitioner has challenged the order passed by the
Trial Court allowing the application under Order VI Rule 17 of the
Code of Civil Procedure seeking amendment of the plaint.
4. Mr. Jetha, learned counsel for the petitioner, vehemently
submitted that the amendment application filed by the plaintiffs was
liable to be rejected, in view of proviso to Order VI Rule 17 of the
Code of Civil Procedure, as the plaintiffs have not acted with due
diligence. He submitted that the plaintiff no.1-c Pankaj Harishankar
Gupta is an Advocate and the plaint was originally filed by his father
Harishankar Shrinarayan Gupta. In the suit, the plaintiff no.1-c has
himself conducted the proceedings in the capacity of a Lawyer. He,
therefore, submitted that although after the death of original
plaintiff Shri Harishankar, the names of legal representatives
including the plaintiff no.1-c Pankaj Gupta are arrayed as plaintiff
nos.1-a to 1-d, the proposed amendment ought to have been
incorporated in the plaint. It is submitted that the plaintiffs have not
exercised due diligence and the proposed amendment after the
demise of the original plaintiff is sought only with a view to fill up
the lacunae in the case of plaintiffs. He also submitted that the
amendment application was moved after the commencement of
evidence and in view of all these aspects, the Trial Court ought to
have rejected the application.
5. Per contra, Mr. P.P.Kothari, learned counsel for the
respondent no.1-c, strenuously opposed the writ petition. He
submitted that the Regular Civil Suit was originally filed by Shri
Harishankar, father of the plaintiff no.1-c Pankaj Gupta and after the
demise of the original plaintiff, the legal representatives are entitled
to raise pleas in their own right. He submitted that although the
plaintiff no.1-c had worked as an Advocate in the Regular Civil Suit,
his role in the Regular Civil Suit was in different capacity and he is
now entitled to introduce pleadings based on his personal
knowledge in respect of transaction. In support of his submissions,
he relies on a judgment of the High Court of Punjab and Haryana in
the matter of Sondhi Ram Vs. Uggar Singh and others, reported in
2014 LawSuit(P&H) 3188 in which the legal position about right of
legal representatives to raise their pleas is considered. He also
submitted that before the evidence of the original plaintiff
Harishankar could be completed, he had expired, and therefore, the
contentions of the petitioner that amendment is sought to be made
after evidence has started cannot be accepted. He further submitted
that the plaintiffs are not raising any new claims by way of
amendment and hence, the amendment application has been rightly
entertained.
6. In view of the above rival contentions of the respective
parties, the legality of the impugned order is tested.
7. It has to be noted that the amendment application is filed
by the plaintiff no.1-c Pankaj Gupta after his name along with other
legal representatives of the original plaintiffs were brought on
record. Although the record reveals that the plaintiff no.1-c Pankaj
Gupta had worked as an Advocate for his father in the said Regular
Civil Suit it is pertinent to note that the role of the plaintiff no.1-c
was in different capacity. It cannot be presumed that the things
which are in the personal knowledge of plaintiff no.1-c were
incorporated in the plaint which was drafted, according to the
instructions of the original plaintiff Mr. Harishankar Gupta. As such
merely because plaintiff no.1-c was an Advocate for the original
plaintiff, it cannot be inferred that the plaintiffs failed to exercise
due diligence.
8. It is also crucial to note that the plaintiff nos.1-a to 1-d
have been arrayed as parties to the Regular Civil Suit after the death
of original plaintiff Mr. Harishankar Gupta. As such, the plaintiffs
are entitled to raise pleas in their own right. The legal
representatives of the deceased plaintiff are entitled, by way of
pleadings and evidence, to state the facts within their personal
knowledge, which cannot be considered as an attempt to fill up the
lacunae. A perusal of the amendment application shows that the
plaintiffs have proposed to add a few paragraphs in the plaint, and
there is no attempt to add any new prayers so as to change the
nature of Regular Civil Suit.
9. The position of law is well settled that amendments can
be allowed at any stage. Considering the stage of the Regular Civil
Suit in which the evidence of the plaintiff could not be completed on
account of his death, no prejudice would be caused to the
defendants, if the amendment application is allowed.
10. Having considered the settled position of law, as laid
down in the matter of Sondhi Ram (supra), it is to be noted that the
legal representatives are entitled to amend the pleadings so as to
incorporate the pleas that become available to them in their own
right as legal representatives. As such, the reliance placed by the
counsel for the respondents on this judgment appears to be
appropriate.
11. In view of the aforesaid factual and legal aspects, no
indulgence is warranted in the impugned order passed by the Trial
Court. Having regard to the peculiar nature of the proceedings, the
defendants shall be entitled to apply for consequential amendment
and to conduct cross-examination, if any, even with respect to the
proposed amendment. A perusal of the impugned order shows that
the Trial Court has duly considered the relevant factual and legal
aspects. Hence, no interference is called for in the impugned order
and the writ petition deserves to be dismissed.
12. The Writ Petition is dismissed. Rule is discharged. There
shall be no order as to costs.
(PRAFULLA S. KHUBALKAR, J. )
Mukund Ambulkar
Signed by: Ambulkar (MLA)
Designation: PS To Honourable Judge
Date: 22/08/2025 20:36:30
