Bombay High Court
Devidas Ragho Chavan And Others vs Sudhakar Ragho Chavan on 13 November, 2025
2025:BHC-AUG:31053
917-WP-9435-15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9435 OF 2015
1. Devidas Ragho Chavan
Age: 61 years, Occu.: Agri.,
2. Rakesh Devidas Chavan
Age: 41 years, Occu.: Agri.,
3. Mukesh Devidas Chavan
Age: 36 years, Occu.: Agri.,
All R/o Dattane, Tq. Shindkheda,
Dist. Dhule ..PETITIONERS
VERSUS
Sudhakar Ragho Chavan
Age: 60 years, Occu.: Agri.,
R/o Dattane, Tq. Shindkheda,
Dist. Dhule ..RESPONDENT
....
Mr. A.S. Sawant, Advocate for petitioners
Mr. S.P. Shah, Advocate for the respondent
....
CORAM : ABHAY J. MANTRI, J.
DATE : 13th NOVEMBER, 2025
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard learned counsel for
both parties for final disposal.
2. The petitioners / original defendants, being aggrieved by the order
dated 13th January, 2015, passed by learned Joint C.J.J.D., Shindkheda
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(hereinafter referred to as 'trial Court') below Exhibit 28 in R.C.S. No. 35 of
2014, whereby their application for permitting them to amend the written
statement came to be rejected, have preferred this petition.
3. At the outset, learned counsel for the petitioners contends that
prior to the commencement of the trial, the petitioners had made an
application for carrying out an amendment in the written statement. The
application was rejected. Learned counsel has pointed out paragraph no.6 of
the impugned order and submitted that despite the observations made
therein, the learned trial Court has erred in rejecting the application as the
said amendment appears inconsistent with the defence taken in the written
statement. In fact, as per the observations in paragraph no. 6, the learned
trial Court ought to have allowed the application for amendment as the trial
was yet to commence, and therefore, he urged for allowing the petition.
4. Per contra, learned counsel for the respondent strenuously
opposed the petition on the ground that the amendment sought by the
petitioners is inconsistent with their defence raised in the written statement.
Additionally, by the said amendment, the petitioners want to withdraw their
admission as given in paragraphs 2 and 3 of the written statement, which is
not permissible. As such, he submitted that the impugned order passed by
the learned trial Court is just and proper and no interference is required in it.
5. Having heard the rival submissions and gone through the
impugned order and record, at the outset, it appears that the
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petitioners/defendants have moved an application for permitting them to
amend the written statement prior to the commencement of the trial. It is a
settled position of law that prior to commencement of trial, the Court ought
usually to be allowed all the amendments, unless the same would cause
prejudice to the rights of the parties.
6. On perusal of the record, it appears that the respondent/plaintiff
has filed the suit for a simpliciter injunction, wherein the
petitioners/defendants appeared and denied the contents of the plaint in
toto. I have also perused paragraph nos. 2 and 3 of the written statements
which indicates that the petitioners have categorically averred that the
contents of paragraph nos. 2 and 3 are false and mentioned those contents
below that, and therefore, in my view, it cannot be said that the contents
mentioned below the averments are the admission given by the defendants as
argued by learned counsel for the respondent, and therefore, I do not find
substance in his contention in that regard.
7. Apart from that, by filing the said application, the
petitioners/defendants were trying to insert paragraph no.9, as mentioned in
the application (pg. no.19), whereby they want to incorporate the fact that 'in
the year 1992, a memorandum of understanding was executed between the
parties and accordingly all the parties are in the possession of their respective
shares' and the said amendment does not indicate that the
petitioners/defendants want to withdraw their admission given in the written
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statement. On the contrary, they want to incorporate it to claim possession of
the disputed land.
8. Moreover, the suit is filed for a simplicitor injunction only.
Therefore, the parties must demonstrate their possession of the disputed
property. As such, in my view, the proposed amendment as sought is
necessary to determine the real question in controversy between the parties
regarding who is in possession of the disputed land and to avoid the
multiplicity of proceedings. Furthermore, if the amendment is allowed, it
would not prejudice the plaintiff's rights.
9. Having considered the above discussion and mandate under Order
VI Rule 17 of the Code of Civil Procedure, I find substance in the contention
of the petitioners to permit them to amend the written statement, as it is a
settled position of law that the court has to be liberal in permitting the
amendment unless a serious prejudice would be caused to the other side.
Similarly, it is a settled position of law that defendants can take various pleas
in their written statement. Moreover, the trial was yet to be commenced, as
well as the proposed amendment will not change the nature of the defence
therefore, it appears that the order passed by the learned trial Court is
contrary to the settled position of law, as well as the learned Judge has erred
in observing that the proposed amendment which the petitioners have sought
is inconsistent with the defence in the written statement, and therefore, was
rejected. Consequently, it appears that the learned trial court has erred in not
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allowing the application for amendment. The findings recorded by the
learned trial court are improper and, therefore, liable to be set aside in the
writ jurisdiction. Accordingly, interference is required in it.
10. As a result, the writ petition is allowed. The impugned order dated
13th January, 2015, passed by learned Joint C.J.J.D., Shindkheda, below
Exhibit 28 in R.C.S. No. 35 of 2014, is hereby quashed and set aside. The
application Exhibit 28 is allowed as prayed. The petitioners are directed to
carry out the amendment within two weeks from the receipt of a copy of this
order by the learned trial Court and serve a copy of the amended written
statement to the plaintiff within one week thereafter, failing which this order
shall stand vacated without further reference to the Court.
11. The learned counsel for the respondent has pointed out that the
plaintiff has filed an affidavit of evidence before the learned Magistrate. In
such circumstances, the plaintiff is at liberty to adduce additional evidence, if
any, pursuant to the said amendment. Inform the order to the learned trial
Court. The rule is made absolute. No order as to costs.
( ABHAY J. MANTRI, J. )
SSD
