[Cites 7, Cited by 0]
Bombay High Court
Santosh Madhukar Pawar And Anothers vs Indubai Eknath Pawar And Others on 9 February, 2026
2026:BHC-AUG:5514
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10405 OF 2015
1. Santosh Madhukar Pawar,
Age : 36 years, Occu. : Business,
R/o. Gandhi Nagar, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar.
2. Sahebrao Kashinath Kadam,
Age : 66 years, Occu. : Agri.,
R/o. At Post Khande,
Tq. Kopargaon, Dist. Ahmednagar. ... Petitioners
(Orig. defendant No.09 & 10)
Versus
1. Indubai Eknath Pawar,
Age : 66 years, Occu. : Household & Agri.,
2. Vishnu Eknath Pawar,
Age : 48 years, Occu. : Service,
3. Santosh Eknath Pawar,
Age : 54 years, Occu. : Agri.,
All R/o., Bora Building,
Near M.S.E.B. Power House,
Kopargaon, Tq. Kopargaon, Dist. Ahmednagar.
4. Eknath Dhondiba Pawar (Died)
5. Vimal Vishnu Jadhav,
Age : 56 years, Occu. : Household,
R/o. At Post Kolpewadi,
Tq. Kopargaon, Dist. Ahmednagar.
6. Pushpa Sudhakar Jogdhane,
Age : 54 years, Occu. : Household,
R/o. At Post Ukkalgaon,
Tq. Shrirampur, Dist. Ahmednagar.
7. Rukhmunibai Dagduji Pawar,
Age : 54 years, Occu. : Household,
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R/o. Gandhi Nagar, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar.
8. Venubai Chandu Sathe, }
Age : 50 years, Occu. : Household, } Delete as per court's order
R/o. Shrudha Towers, } dated 14.12.2015
Kopargaon, Tq. Kopargaon, }
Dist. Ahmednagar.
... Respondents
(Orig. Plaintiffs are Nos.1 to 3)
......
Mr. S. S. Gangakhedkar, Advocate for Petitioners.
Mr. N. V. Gaware, Advocate for Respondent Nos.1 to 3, 5 and 6.
......
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 05 FEBRUARY 2026
PRONOUNCED ON : 09 FEBRUARY 2026
JUDGMENT :
1. Heard. Rule. The Rule is made returnable forthwith. At the
request of both the sides, the matter is heard finally at the stage of
admission.
2. Petitioners herein, who are original defendant nos.9 and 10,
are hereby impugn the order dated 06.08.2015 passed by learned Civil
Judge, Senior Division, Kopargaon on Application Exh.186 in Special
Civil Suit No.70 of 1996 rejecting prayers for carrying out amendment to
the pleadings in written statement.
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3. Learned counsel for petitioners would point out that, present
respondents - original plaintiff Nos.1 to 3 instituted Special Civil Suit
No.70 of 1996 for partition, declaration and injunction against original
defendants with regard to property described in the plaint i.e. 2A to 2G
and amendment plaint in 2-A-1 to 2-C-1. It is further pointed out that,
one Dattatraya Pawar and Radhabai Pawar had filed Regular Mukadma
No.525 of 1992 against original plaintiffs as well as defendants with
regard to above property and in consequence to compromise pursis,
decree was drawn in above proceedings. It is further pointed out that,
original plaintiffs and original defendants filed partition deed amongst
themselves in view of above decree dated 28.09.1992.
4. It is pointed out that the present petitioners, being
subsequent bonafide purchasers, appeared in the suit to contest it and
even filed written statement well within time. He pointed out that, even
issues came to be framed. However, he asserted that, later on, it was
learned that on 12.06.2015 about an earlier partition suit to be decreed
by the court of Kopargaon with regard to same property and
consequently, petitioners applied for its certified copy i.e. of said Regular
Mukadma No.525 of 1992 and on receipt of its copy on 10.07.2014, it
was realized that, certain facts are required to be reincorporated in the
written statement. He further pointed out that, petitioners had already
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made party in the above suit. Subsequent developments of compromise
decree were not within the knowledge of petitioners, and therefore, to
protect their interest and take a specific plea, there was necessity of
amendment to the written statement, and so according to him,
application Exh.186 was preferred, however, the same has not been
considered in correct perspective and without assigning sufficing and
sound reasons, said application came to be rejected.
5. Learned counsel pointed out that, for effective defence and
even for proper adjudication, controversy between the parties,
amendment to the written statement was imperative. That, only because
of knowledge about compromise decree, later on at later point of time,
steps were taken to obtain a certified copy and only on its receipts, when
it was found necessary to reflect the above aspects, application seeking
amendment to written statement was pressed into service. Learned
counsel submits that, by carrying out said amendment, the complexion of
the suit does not change or get alter, it did not amount to introduction of
new case. Rather, it is important defence which needs proper
adjudication in the court of law and therefore, he prays to set aside the
order passed on Exh.186 and permit petitioners to carryout necessary
amendment.
6. The above application is opposed on the ground that, to
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prolong the proceedings and to change the complexion of the nature of
proceedings, application (Exh.186) has been pressed into service. Said
amendment is unnecessary, and therefore, learned trial court has rightly
rejected the application.
Here, application with prayers for amendment to written
statement on being turned down, instant writ petition has been preferred.
7. It needs to be noted that, this court by order dated
19.10.2015 granted interim relief, which is as under :-
"Till returnable date, there shall be ad-interim relief in
terms of prayer clause "D".
8. Record shows that, Special Civil Suit No.70 of 1996 came to
be instituted by one Indubai Eknath Pawar against one Eknath Dhondiba
Pawar and others i.e. suit for partition, declaration and injunction against
original defendants. Present petitioners indisputably were arraigned as
defendant nos.9 and 10 and they also filed written statement on
17.02.2014 opposing the suit and prayers raised therein. The oppose to
the suit by present petitioners amongst other ground is that suit property
survey no. 110/2014 and 214/2018 were owned by one Eknath
Dhondiba and due to financial crises and need, said Eknath sold the suit
property to them for a consideration of Rs.5,57,000/- by registered sale
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deed dated 13.03.2013. Stand taken to this extent is clearly mentioned
in paragraph no.4 of the written statement. It is specifically pleaded that,
since then defendants are already in possession. Learned counsel also
invited attention of this court to application dated 12.06.2015 which was
said to be placed before learned trial court putting on record that
certified copy of regular Mukdama was received by them on 10.07.2014.
Copy of said application is also annexed at Exh.'F'.
9. On above premises, written statement was filed on
17.02.2014. Record shows that, issues came to be framed twice by
learned Civil Judge Senior Division, Kopargaon on 07.2.2003 and
09.06.2014, which are as follows :
ISSUES (Exh.102)
"1. Does plaintiff prove that suit property is joint family
property?
2. Does plaintiff prove that she is entitled to recover
Rs.95,000/- from disposed property of defendant
no.1?
3. Does defendant no.1 prove that suit properties are
already partitioned?
4. Does plaintiff prove that she is entitled to 1/5th share
in the suit property?
5. Whether plaintiff is entitled to share as prayed for?
6. What order and decree?"
In view of order below Exh.104, Additional issues
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No.4A is framed as under :
4A. Whether suit is properly valued and proper court fee
stamp is paid in the suit ? If not, what is the effect on
the suit.
Dated : 07.02.2003 sd/-"
ISSUES (L)
"1. Do plaintiffs prove that the suit properties are the
joint family properties of defendants no.5 and 6 and
themselves ?
2. Do plaintiffs prove that defendants No.6 and 7 are not
the legally wedded wives of the deceased defendant
No.7.
3. Are plaintiffs entitled to the relief of declaration as
sought ?
4. Are plaintiffs entitled to get share in the suit
properties? If yes, what is their share and in which
properties ?
5. Are plaintiffs entitled to the relief of perpetual
injunction as sought ?
6. Are plaintiffs entitled to future mesne profits ?
7. What order and decree ?
Dated : 09.06.2014 Sd/-"
10. Here, limited question that arises for consideration is
whether learned trial court was justified in rejecting application Exh.186
for amendment to written statement moved at the instance of present
petitioners. Order VI Rule 17 seems to have been invoked and for ready
reference the same is as under :-
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"17. Amendment of pleadings.--The Court may at
any stage of the proceedings allow either party to
alter or amend his pleadings in such manner and on
such terms as may be just, and all such amendments
shall be made as may be necessary for the purpose
of determining the real questions in controversy
between the parties:
Provided that no application for amendment shall
be allowed after the trial has commenced, unless
the Court comes to the conclusion that in spite of
due diligence, the party could not have raised the
matter before the commencement of trial."
11. What is discerned on reading above provision is that, firstly,
amendment of pleadings can be allowed, at any stage. Secondly, the
proposed amendment must be shown to be necessary for determination
of real question of controversy between the parties and if the amendment
is sought to be brought after commencement of the trial, the court, while
allowing the same, has to first to record a conclusion that, in spite of best
efforts, a party to the proceedings could not bring the proposed
amendment or document on record at earlier point of time.
12. The Hon'ble Apex Court in the case of Dinesh Goyal @
Pappu v. Suman Agarwal (Bindal) and Ors. In Civil Appeal arising out of
Special Leave Petition (Civil) 30324 of 2019 has considered the law
relating to amendments of pleadings and it is observed as under :-
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"11.1 - The settled rule is that the Courts should adopt a
liberal approach in granting leave to amend pleadings,
however, the same cannot be done in contravention of the
statutory boundaries placed on such powers. In North
Eastern Railway Administration, Gorakhpur v. Bhagwan Das
(2008) 8 SCC 511, held as under :-
"16. Insofar as the principles which govern the
question of granting or disallowing amendments
under Order 6 Rule 17 CPC (as it stood at the
relevant time) are concerned, these are also well
settled. Order 6 Rule 17 CPC postulates amendment
of pleadings at any stage of the proceedings. In
Pirgonda Hongonda Patil v. Kalgonda Shidgonda
Patil [AIR 1957 SC 363] which still holds the field, it
was held that all amendments ought to be allowed
which satisfy the two conditions : (a) of not working
injustice to the other side, and (b) of being
necessary for the purpose of determining the real
questions in controversy between the parties.
Amendments should be refused only where the
other party cannot be placed in the same position as
if the pleading had been originally correct, but the
amendment would cause him an injury which could
not be compensated in costs. [Also see Gajanan
Jaikishan Joshi v.Prabhakar Mohanlal Kalwar
(1990)1 SCC 166.]"
13. Again in the aforesaid judgment, by taking into account
numerous precedents as spelt out in the case of Life Insurance
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Corporation of India v. Sanjeev Builders Pvt. Ltd. & Anr., 2022 SCC
OnLine SC 1128, wherein certain principles with regard to amendment of
pleadings are dealt, are also reproduced which are borrowed and the
same are as under :
(i) All amendments are to be allowed which are necessary for
determining the real question in controversy provided it
does not cause injustice or prejudice to the other side. This
is mandatory, as is apparent from the use of the word
"shall", in the latter part of Order VI Rule 17 of the CPC.
(ii) In the following scenario such applications should be
ordinarily allowed if the amendment is for effective and
proper adjudication of the controversy between the parties
to avoid multiplicity of proceedings, provided it does not
result in injustice to the other side.
(iii) Amendments, while generally should be allowed, the same
should be disallowed if -
(a) By the amendment, the parties seeking amendment does
not seek to withdraw any clear admission made by the party
which confers a right on the other side.
(b) The amendment does not raise a time-barred claim,
resulting in the divesting of the other side of a valuable
accrued right (in certain situations)
(c) The amendment completely changes the nature of the
suit;
(d) The prayer for amendment is malafide,
(e) By the amendment, the other side should not lose a valid
defence.
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(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."
14. Again by referring to earlier precedent in the case of Rakesh
Kumar Agarwal v. Rajmala Exports Pvt. Ltd, (2012) 5 SCC 337; Usha
Balasaheb Swami and Ors. v. Kiran Appaso Swami and Ors., (2007) 5
SCC 602; B. K. Narayana Pillai v. Parmeshwaran Pillai and Anr., (2000) 1
SCC 712, it is reiterated the overarching rule is that, liberal approach is
to be adopted in consideration of such applications.
15. Keeping above settled principle in mind, case in hand is
approached and dealt. Admittedly, suit on behalf of original plaintiff is
for partition, declaration and injunction with regard to suit property.
Present writ petitioners are admittedly arraigned as defendant nos.9 and
10 and further there is no dispute that by filing written statement, they
also participated in the suit to contest the same. It is specific case of
petitioners that subsequent to filing of written statement, they learnt and
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realized that, an earlier partition suit concerning the same property had
been decreed by the Court of Kopargaon and therefore, they applied for a
certified copy of Regular Mukadma No. 525 of 1992, and upon receiving
it on 10.07.2015, found it necessary to incorporate such aspects in their
written statement and thereby applied vide application vide Exh.186
seeking permission to amend the pleadings in the written statement.
16. Post filing written statement, above aspects were said to be
learned. The proposed amendment is also reflected in the application.
Learned counsel for respondent herein merely stated that the nature of
complexion of the suit is getting changed, but how is not clarified by him.
Merely oppose is made on the ground that, it is an attempt to prolong the
suit. However, from above sequence of events, it is emerging that,
application for amendment to written statement was tendered just after
framing of issues and trial was to commence. Law is settled that, such
application can be preferred by any party at any stage of the proceedings.
For proper adjudication of the controversy, and for deciding the real
controversy, defendants indeed made out a case that they need to
carryout the amendment to the above extent. Admittedly, the nature and
complexion of the suit are not getting altered and no new aspect is shown
to be tried to be introduced. Therefore, when for proper adjudication of
the controversy regarding the subject matter of suit, which petitioners
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claim to have acquired an interest by virtue of sale deed, they have every
right to incorporate material in their favour to put up effective defence.
17. Keeping above legal requirements and settled precedent
discussed above, in the considered opinion of this court, if the
amendment is not allowed, defendants would not be in a position to
effectively put up their defence, thereby causing injustice to them. On the
other hand, if the amendment is allowed, no prejudice is shown to be
caused to the original plaintiff. Resultantly, proposed amendment
deserves to be allowed. Hence, the following order is passed :
ORDER
(i) The Writ Petition is allowed in terms of prayers clauses
"B" and "C".
(ii) Rule is made absolute in above terms.
(ABHAY S. WAGHWASE, J.)
Tandale
