Partly allowed

Vimal Balkrishna Kanade and Ors. v. Shri.Dnyaneshwar Narharh Dhone and Ors.

Bombay HC27 Apr 2007WP/1080/2007

Case brief

AI extract

What is this about?

Adivisory order in a written petition under Art 227 allowing amendment to the plaint specifically to claim relief for partition and separate possession after removal of new construction, while distinguishing prayers for amendment of other exhibits.

What did the court decide?

Amendment to plaint allowed; impugned judgment modified; hearing expedited; contentions on merits kept open.

Vimal Balkrishna Kanade and Ors. Vs Shri.Dnyaneshwar Narharh Dhone… — Partition | Bombay HC (2007)

¶1

... 1 ...

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

¶3

WRIT PETITION NO.1080 OF 2007

¶4

Smt Vimal Balkrishna Kanade & Ors.

¶5

...Petitioners

¶6

Versus

¶7

Shri Dnyaneshwar Narhari Dhone & Ors....Respondents

¶8

Shri P.B.Shah for the Petitioners.
Shri G.S.Bhat for the Respondent Nos.1 to 3.
Shri A.Y.Sakhare, Sr counsel i/by Y.K.S.Legal for the
Respondent No.4.

¶9

CORAM : ABHAY S.OKA, J.
DATED : APRIL 27, 2007.

¶10

P.C.:

¶11

1.I have heard submissions of the learned counsel
appearing for the parties. The challenge in this Writ
Petition under Article 227 of the Constitution of India
is to the order dated 14th December, 2006 passed by the
learned trial Judge below Application at Exhibit 102.
The Application at Exhibit 102 was filed by the
Petitioners for amendment of pleadings. In the said
Application at Exhibit 102 the prayers were made for
permitting the Petitioners to carry out amendment to the
plaint as well as to the Applications at Exhibit 59, 60
and 61. The learned trial Judge by the impugned order
partly allowed the Application. The learned counsel
appearing for the Petitioners has stated that he is
pressing the Application at Exhibit 102 only in so far
as it relates to the amendment of the plaint. He

¶12

... 2 ...

¶13

submitted that the part of the amendment which is not
granted by the trial Court is based on the subsequent
events and therefore, the Court ought to have allowed
the amendment. The learned counsel appearing for the
Respondents supported the impugned order by pointing out
that considering the frame of the suit, the Court was
justified in rejecting the prayer for amendment.

¶14

2.The suit filed by the Petitioners is for
declaration that the Petitioners have 1/8th undivided
share in the suit property as well as in the business of
ware-house. Prayer for partition and separate
possession is also made. A prayer is also made for
injunction restraining the original Defendant Nos.1 and
2 from carrying on any construction.

¶15

3.The amendment which is rejected is in relation
to prayer clause (d) of the plaint. Prayer clause (d)
in the plaint is for decree of partition and separate
possession of 1/8th share of the Petitioners in the suit
property. The amendment which was sought to be made was
for granting possession of the separate share of the
Petitioners after removing the newly made construction
on the suit property. It is alleged that the
construction has been made during the pendency of the
suit. In my view, there was no reason to disallow that

¶16

... 3 ...

¶17

part of the amendment as the same does not change the
nature of the suit. The trial Court has committed an
error by not granting that part of the amendment. To
that extent the Petition must succeed and hence, I pass
the following order:

¶18

(i)The impugned Judgment and Order dated 14th
December, 2004 is modified.

¶19

(ii)Application at Exhibit 102 is allowed in its
entirety in so far as the amendment to the
plaint is concerned.

¶20

(iii)It is, however, clarified that the application
is not granted in so far as prayers for
amendment of Exhibits 59, 60 and 61 are
concerned.

¶21

(iv)The amendment shall be carried out within two
weeks from the date of receipt of writ of this
order by the trial Court.

¶22

(v)The trial Court will permit the Defendants to
file additional written statement, if any, to
the amended plaint within a period of six weeks
from the date on which amendment is carried out.

¶23

... 4 ...

¶24

(vi)If the trial Court finds that additional court
fee is required to be paid on the amended
prayer, it will be open for the trial Court to
pass appropriate direction in that behalf.

¶25

(vii) All contentions of the parties on merits are expressly kept open.

¶26

(viii) Hearing of the suit is expedited.

¶27

(ix) Writ Petition is partly allowed in above terms.

¶28

JUDGE

Vimal Balkrishna Kanade and Ors. v. Shri.Dnyaneshwar Narharh Dhone and Ors.

Case brief

What is this about?

What did the court decide?

Vimal Balkrishna Kanade and Ors. v. Shri.Dnyaneshwar Narharh Dhone and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Noor Ahmed Husain Kazi Vs Razia Ibrahim Khalfe

Savitri Anada Vadar and Ors. Vs Vadar Kamgar Soc. Ltd. and Ors.

Fizza Musaji Lakdawala Vs Taiyabhbhai Ebrahim Dhorajiwala

Mohanlal Brijlal Pardeshi Vs Kalidas Bhagwanrao Wadekar

Vijaya Zumbar Patil and Anr. Vs Dattatray Jagannath Dhande and Anr.

A. Majid Shaikh Bashir Vs Afsana Bano Jakir Hussain