Bombay High Court
Madhukar S/O Ramrao Kute vs Jyoti W/O Mahendra Chavan And Others on 4 November, 2025
2025:BHC-NAG:11408
J-wp6120.22.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.6120 OF 2022
Madhukar s/o. Ramrao Kute,
Aged 52 years,
Occupation : Agriculturist,
Resident of Kharao, Tahsil Chikhli,
District Buldhana. : PETITIONER
...VERSUS...
1. Jyoti w/o. Mahendra Chavan,
Aged 47 years, Occupation : Agriculturist,
Resident of Chikhli, Tq. Chikhli, Distt. Buldhana.
2. Sugandeo Ganpat Khandagale,
Aged 52 years, Occupation : Agriculturist,
Resident of Khairav, Tq. Chikhli, Distt. Buldhana.
3. State of Maharashtra,
Through Collector, Collector Officer,
Buldana.
4. Sub-Divisional Officer, Buldana,
Tahsil and District Buldana.
5. Tahsildar, Chikhli,
Tahsil Chikhli, District Buldana. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. Satish R. Deshpande, Advocate for Petitioner.
Mrs. H.N. Prabhu, Assistant Government Pleader for Respondent
Nos.3 to 5.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : NANDESH S. DESHPANDE, J.
RESERVED ON : 16th OCTOBER, 2025.
PRONOUNCED ON : 04th NOVEMBER, 2025.
J-wp6120.22.odt 2/6
JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard finally
with the consent of learned counsel appearing for the parties.
2. This is a petition challenging the order dated
19.11.2021 passed by the Civil Judge, Senior Division, Buldhana,
below Exh-43 in Regular Civil Suit No.52/2017.
3. The facts in brief can be stated as under ;
The petitioner herein is the original defendant No.4 in
suit filed by the respondent Nos.1 and 2 before the Civil Judge,
Senior Division, Buldhana. The said suit was filed for permanent
injunction restraining the defendants from using right of way from
the land of the plaintiffs. The said suit was based on the ownership
of the field in question and therefore, they prayed for restraining
the petitioner i.e. defendant No.4 from interfering with the
possession and right of way. After receipt of summons, the
defendant No.4 i.e. the petitioner herein appeared and filed the
written statement and stated that the Sub-Divisional vide its letter
dated 7.12.2016 directed the Tahsildar to open the road of bullock
cart from Gut Nos.80 and 81 along with other Gut numbers.
4. Thereafter, the respondent Nos.1 and 2 i.e. the original
plaintiffs filed an application under Order VI Rule 17 for
amendment of the plaint. The said amendment was to the effect of
incorporating a relief of declaration regarding the order dated
7.12.2016 passed by the Sub-Divisional Officer i.e. the original
defendant No.2 is not binding as they were not parties to the said
proceedings. The petitioner herein opposed the said application on
a ground that the proposed amendment would change the nature
of the suit and is barred by Section 41 of the Specific Relief Act.
After hearing the parties, learned trial Court allowed the
application subject to payment of costs of Rs.750/- vide its order
dated 19.11.2021. It is this order which is impugned in the present
petition on various grounds as raised in the memo of petition.
5. I have heard Mr. Sachin S. Deshpande, Advocate for
Petitioner and Mrs. H.N. Prabhu, Assistant Government Pleader for
respondent Nos.3 to 5. Nobody appears for the respondent Nos.1
and 2 though served.
6. I have also perused the record of the matter. Mr.
Satish Deshpande, learned counsel for the petitioner submits that
the learned trial Court gravely erred in allowing the application for
amendment as it would change the nature of the suit. He further
submits that Section 143 sub-Section (4) of the Maharashtra Land
Revenue Code contemplates that whoever is aggrieved by the
decision of the Tahsildar under Section 143 can challenge the same
within one year from the date of such decision by instituting a civil
suit.
7. Per Contra, Mrs. H.N. Prbhu Learned A.P.P. supports the
impugned order.
8. Perused of the order impugned in the present petition
would reveal that the trial Court has taken into consideration the
fact that the defendant No.4 was joined as a party defendant in the
suit on 5.12.2018. In the said order permitting him to join, the
defendant No.4 has specifically contended that an appeal against
the order of Tahsildar was preferred before the Sub-Divisional
Officer, Buldhana and in the said proceedings the Authority has
granted road to the defendant vide its order dated 17.12.2016.
The trial Court has further went on to record that the defendant
No.4 has contested the suit and had taken a specific defence about
the order passed by the Revenue Authority and since there are
subsequent developments, it would be necessary to allow the
amendment of the plaint, as proposed. It is further observed that
the declaration sought by way of an amendment with respect to the
orders of the Revenue Authorities, the nature of the suit is not
changed. Thus the trial Court has recorded a cogent finding in that
regard.
9. On perusal of the impugned order I am of the opinion
that the controversy in the present matter is to be decided in the
backdrop of settled propositions of law that while considering the
application for amendment, the merits of the amendment need not
be seen. Therefore, whether the omission to challenge the order of
the Sub-Divisional Officer renders the relief of declaration
maintainable or not would be a matter within the domain of merits.
Furthermore, in the light of dictum of the provisions of Section 143
sub-Section (4), whether the amendment is barred by limitation,
would be an aspect which would also fall within the realm of merit
of amendment. While observing so, I am aware of the fact that
admittedly the amendment is sought at a pre-trial stage and
therefore, there is no question of proviso of order VI Rule 17
coming into play. It is a settled principle of law that pre-trial
amendments are to be liberally allowed. The opponent can
certainly raise a defence regarding the effect of omission to
challenge the order of the Revenue Authority and the proposed
amendment being barred by limitation during the course of trial.
10. The learned counsel for the petitioner Mr. Satish
Deshpande submits that allowing the amendment by incorporating
challenge to the order dated 7.12.2016 would cause serious
injustice as the plaint if amended would relate back to the date of
the suit. In my view, this aspect would be regarding the
maintainability and consequently the merit of the amendment and
therefore as already discussed by me above cannot be gone into. As
can be seen from the proposed amendment there is specific
averment that the petitioners were not parties before the revenue
authorities and therefore the orders passed in those proceedings
are not binding on them. Therefore, whether the limitation as
provided under section 143 (4) of MLR Code would apply to them
is also a question to be adjudicated at the time of trial. Thus there
is no perversity in the impugned order.
11. In that view of the matter, following order is passed ;
ORDER
(i) The Writ Petition is dismissed with no order as
to costs. Rule stands discharged.
(ii) Interim order, if any, stands vacated.
(iii) Pending application, if any, stands disposed of.
(NANDESH DESHPANDE, J.)
wadode
Signed by: Mr. Devendra Wadode
Designation: PS To Honourable Judge
Date: 04/11/2025 17:13:30
