Bombay High Court
Rajendra S/O. Shalikram Patil And ... vs Sultan Ahmad S/O. Mohd. Rashid on 20 June, 2025
2025:BHC-NAG:5691
46-wp-196-24.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.196 OF 2024
1. Shri Rajendra S/o Shalikram Patil, Petitioners
aged about 57 years., Occ. Business.
2. Shri Vijay S/o. Shalikram Patil,
aged about 51 yrs., Occ. Business.
Both R/o Hamalpura, Kamptee,
Tah. Kamptee, Distt. Nagpur,
-Versus-
Sultan Ahmad S/o. Mohd. Rashid, Respondent
R/o. Nayan Opticals,
Goyal Talkies Road, Kamptee,
Tah. Kamptee, Distt. Nagpur.
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Adv. Devidas Chintaman Chahande counsel, for Petitioners.
Adv. D.G. Paunikar for R-Sole.
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CORAM : MRS. VRUSHALI V. JOSHI, J.
DATE : 20/06/2025.
JUDGMENT:
-
1) Heard.
2) Rule. Rule made returnable forthwith. By consent of the
learned Counsel for the parties, the Writ Petition is heard finally.
3) In the present petition, the petitioners are challenging an
order passed by the 2nd Joint Civil Judge, Junior Division,
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Kamptee, rejecting an application for amendment of a plaint in
Regular Civil Suit (R.C.S.) No. 58/2020.
4) The petitioners claim to be the rightful and exclusive joint
owners of property bearing Municipal S-396 to S-398, out of Sheet
No. 5, Block No. 38, Goyal Talkies Road, Kamptee, District
Nagpur, admeasuring 1650 sq. ft. This property was purchased by
the petitioners through a registered sale deed No.3450, dated
August 19, 2005, for Rs. 4,00,000/- from Smt. Kamlabai Wd/o
Indrajeet Katnas.
5) The respondent (original defendant), Sultan Ahmad,
became a tenant of the petitioners in a portion of this property, i.e.,
660 sq.ft. running a business called "Nayan Opticals". An
attornment notice dated November 24, 2008, was sent to the
respondent, informing him of the ownership transfer and directing
him to pay rent to the petitioners. The petitioners require the
premises for their bonafide needs, specifically for their four
educated unemployed sons to start businesses, namely, Sushil
Rajendra Patil (MCA IT, 34 years) for a Cyber Cafe; Pratik
Rajendra Patil (12th std, 30 years) for Bichayat and Catering;
Nikhil Vijay Patil (12th std, 29 years) for a General Stores; and
Shashank Vijay Patil (12th std, 27 years) for a Grocery Shop.
Consequently, the petitioners filed Regular Civil Suit No. 58/2020
for eviction and recovery of arrears of rent.
6) The respondent filed his written statement (Exh. 15) on
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December 5, 2020, denying the tittle of the petitioners and
claiming it in favour of the deceased Kamlabai Katnas and, after her
death, in favour of Smt. Uma Thakur. In response to this denial, the
petitioners filed an application for amendment of the plaint under
Order 6 Rule 17 of the C.P.C. on January 2, 2021 (Exh. 17),
seeking to incorporate a new paragraph 12(A) and make changes in
the particulars of claim and prayer clause. The respondent filed a
reply to the amendment application on January 29, 2021 (Exh.
18). The 2nd Joint Civil Judge, Junior Division, Kamptee, rejected
the amendment application vide an order dated September 2,
2023, below Exh. 17 which is under challenge.
7) The learned counsel for the petitioners, Mr. Chahande,
contended that the respondent has not paid rent since December
2008, accumulating arrears of Rs. 99,000/- up to February 28,
2019. The counsel argued that the trial judge erroneously rejected
the application on "technical grounds", specifically stating that the
plaintiffs were aware of the facts from the defendant's reply notice
prior to filing the suit. The petitioners assert that the proposed
amendment is a direct "outcome of consequence of written
statement", where the defendant denied their title and set up title in
Smt. Uma Thakur. The stance of the petitioners is that a "notice
reply is not pleadings" and can be changed or altered in the written
statement.
8) Heard both the parties.
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9) This is an application filed by the plaintiff for amendment
in plaint. It appears from the record that the plaintiff by way of
amendment wants to add some pleadings which are already pleaded
by him. He was having knowledge of it, even at the time of filing
of suit therefore, the stand taken by the petitioner that after filing of
written statement by the defendant, he came to know that the
defendant denied the title and ownership over the suit property is
not correct. The petitioner was aware about the denial of title. He
has pleaded it in his plaint. The trial court has specifically
mentioned in the order that in paragraph No.3, it is mentioned
about the denial of the title. When the pleadings are already there,
there is no need to amend the plaint. There is no subsequent event
and it is not the case that the petitioner was unaware of it.
10) The petitioner has relied on the judgment of Hon'ble
Apex Court in the case of Chakreshwari Construction Ltd. Vs.
Manohar Lal reported in 2017 (5) Mh.L.J,195, wherein in
paragraph No.14 the Hon'ble Apex Court has observed as under:-
"The principle applicable for deciding the
application made for amendment in the pleadings
remains no more res integra and is laid down in
several cases. In the case of Revajeetu Builders and
Developers v. Narayanaswamy & Sons and Others,
2010(1) RCR (Civil) 27 : 2009(2) RCR (Rent) 568 :
(2009) 10 SCC 84, this Court, after examining the
entire previous case law on the subject, culled out the
following principle in Para 63 of the judgment which
reads as under:
"63. On critically analysing both the Eng-
lish and Indian cases, some basic princi-
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ples emerge which ought to be taken into
consideration while allowing or rejecting
the application for amendment:
(1) whether the amendment sought is
imperative for proper and effective adju-
dication of the case;
(2) whether the application for amend-
ment is bona fide or mala fide;
(3) the amendment should not cause
such prejudice to the other side which
cannot be compensated adequately in
terms of money;
(4) refusing amendment would in fact
lead to injustice or lead to multiple liti-
gation;
(5) whether the proposed amendment
constitutionally or fundamentally
changes the nature and character of the
case; and
(6) as a general rule, the court should
decline amendments if a fresh suit on
the amended claims would be barred
by limitation on the date of applica-
tion.
These are some of the important factors which
may be kept in mind while dealing with application
filed under Order 6, Rule 17 . These are only
illustrative and not exhaustive."
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11) The principle applicable for deciding the application are
mentioned in paragraph No.14 of the said judgment. As the
pleadings are already there in the petition, the amendment is not
relevant for deciding the question of tenancy and availability of
alternate accommodation. The facts proposed in the amendment
were within the knowledge of the petitioner.
12) The stand taken by the defendant in his Written Statement
cannot be the ground to plead against the facts which are already on
record. Therefore, the authority which is cited by the petitioner is
not helpful to the petitioner. The reliance is placed by the plaintiff
on the judgment passed by this Court in the case of Navinchand
Tilakchand Shah and anr. Vs.Bhikulal Ramdulare Gupta and ors
reported in 2025(2)Mh.L.J.293, wherein it is observed by this
Court that merits of the amendment cannot be decided at the time
of deciding the amendment application. As the pleadings are
already there in the plaint and it is within the knowledge of the
plaintiff, the trial court has rightly rejected the application
observing that the amendment is not necessary. Hence, the writ
petition stands dismissed.
13) Rule is discharged.
(MRS.VRUSHALI V. JOSHI, J)
Signed by: Kavita P Tayade
Designation: PS To Honourable Judge
Date: 20/06/2025 16:58:51 Kavita
