[Cites 2, Cited by 0]
Bombay High Court
Maharashtra State Co Operative Housing ... vs Bharat Co Operative Housing Society Ltd on 17 February, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:8106-DB
18-wp2183-2026 with ia1277-2026.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2183 OF 2026
WITH
INTERIM APPLICATION NO.1277 OF 2026
Maharashtra State Coop. Housing
Finance Corporation ... Petitioner
V/s.
Bharat Coop. Housing Society Ltd. ... Respondent
Ms. Mayureshwari Korday with Mr. Nikhil Mhatre i/by
Mr. Akshay Deshmukh for the petitioner/applicant.
Ms. Mamta S. Srivastava, AGP for the State.
CORAM : AMIT BORKAR, J.
DATED : FEBRUARY 17, 2026
P.C.:
1. The petitioner is the original disputant in proceedings under
Section 91 of the Maharashtra Cooperative Societies Act. During
the pendency of appeal, he filed an application seeking
amendment of the dispute. Through that amendment he wanted to
introduce three things. First, he wanted to place on record the
statement of accounts. Second, he wanted to add the names of
legal heirs of a defendant whose death had resulted in abatement.
Third, he wanted to mention names of certain defendants upon
whom service had not yet been effected before the Cooperative
Court. The appellate Court refused this request. The correctness of
that refusal is the issue.
18-wp2183-2026 with ia1277-2026.doc
2. The first part of the amendment concerns the statement of
accounts. A statement of account is a piece of evidence. It is not a
pleading. Pleadings contain facts which form the foundation of the
claim. Evidence proves those facts. Order 6 Rule 17 of the Code
permits amendment of pleadings only to correct or add material
facts. It does not permit production of additional evidence through
amendment. The Code separately deals with additional evidence at
the appellate stage under Order 41 Rule 27. If a party wishes to
produce account statements which were not produced earlier, the
proper course is to satisfy the appellate Court that the evidence is
necessary and falls within the requirements of Order 41 Rule 27.
By inserting such material through amendment, the litigant
attempts to bypass that scrutiny. Therefore the appellate Court
rightly held that the request could not be entertained under Order
6 Rule 17.
3. The second part relates to bringing legal heirs of a deceased
defendant on record after the dispute had already abated against
that defendant. Abatement is not a procedural irregularity. It is a
legal consequence that occurs automatically when substitution is
not made within prescribed time. Once abatement takes place, the
proceeding as against that party comes to an end unless the Court
sets aside abatement on sufficient cause. This principle has been
clearly settled. The judgment in Jayalaxmi Janardhan Walawalkar
v. Lilachand Laxmichand Kapasi (1998) 3 Mah LJ 618 explains that
legal representatives cannot be added by indirect means such as
amendment or impleadment under general powers.
18-wp2183-2026 with ia1277-2026.doc
4. The reasoning is that the Code itself provides a specific
procedure. Order 22 Rule 4 provides substitution of legal
representatives within limitation. Order 22 Rule 9 provides setting
aside of abatement upon sufficient cause. When the statute
prescribes a particular method, the same result cannot be achieved
through another route. If parties are permitted to add legal heirs
by amendment, the limitation prescribed under Order 22 becomes
meaningless. The Court would then revive a dead proceeding
without examining delay or cause. That would defeat the scheme
of the Code. Therefore, once abatement occurs, nothing survives
against that party until abatement is set aside. Amendment cannot
revive it.
5. Consequently, if the petitioner intended to continue
proceedings against the deceased defendant, he had to first apply
for setting aside abatement and explain the delay. Only after the
Court allowed such application could substitution follow.
Attempting to add legal heirs directly through Order 6 Rule 17 is
legally impermissible and the appellate Court correctly rejected it.
6. The third part concerns defendants against whom the
dispute had already been dismissed due to non service. Such
dismissal is an order which has its own remedy. The proper course
is to seek recall or setting aside of that order by showing sufficient
cause under the applicable procedural provision. Amendment of
pleadings cannot reopen an order which has already attained
finality against those defendants. Amendment modifies pleadings.
It does not nullify judicial orders.
18-wp2183-2026 with ia1277-2026.doc
7. For these reasons each part of the amendment application
was legally untenable. The appellate Court did not refuse relief on
technical grounds. It refused because the petitioner invoked a
wrong provision for three different purposes. Each purpose had a
specific remedy under the procedural law and the petitioner
avoided those remedies.
8. The order of the appellate Court therefore calls for no
interference. However, the petitioner is at liberty to pursue
appropriate proceedings. He may apply for additional evidence
under Order 41 Rule 27 or may seek setting aside of abatement
under Order 22 Rule 9 or may seek recall of dismissal against
unserved defendants by showing sufficient cause. If such
applications are filed, they shall be considered in accordance with
law.
9. The writ petition stands disposed of accordingly. No order as
to costs.
10. In view of disposal of the writ petition, interim application
does not survive and stands disposed of as infructuous.
(AMIT BORKAR, J.)
