Partly allowed

Jagannath Krishna Gole v. Chandrakant Narayan Gole

Bombay HC29 Apr 2010WP/687/2010

Case brief

AI extract

What is this about?

In a writ petition concerning an order denying an amendment to a plaint, the High Court modified the order to allow the correction of a typographical error regarding property measurements. The court clarified that the existing temporary injunction remains valid only for the original description, requiring a fresh application for additional area.

What did the court decide?

The order dated October 30, 2009 modified to allow the application for amendment in its entirety; injunction clarified to operate on unamended property description.

Jagannath Krishna Gole Vs Chandrakant Narayan… — Civil Procedure and Limitation | Bombay HC (2010)

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Ash

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 687 OF 2010

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Shri Jagannath Krishna Gole. .. Petitioner Vs Shri Chandrakant Narayan Gole. .. Respondent

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Shri A.V. Chatuphale for the Petitioner. Shri Sameer Vaidya for the Respondent.

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CORAM : A.S.OKA, J. DATE : 29TH APRIL 2010

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P.C:

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. Heard learned counsel appearing for the parties. By the

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order dated 3^rd February, 2010, Rule was issued on the Petition and Rule on interim relief was issued. It was directed that the Petition will be taken up for final disposal at the time of hearing as to interim relief.

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The Petitioner is the Plaintiff and the Respondent is the Defendant. The Petitioner filed a suit for perpetual injunction in respect of the property more particularly described in Paragraph 1 of the Plaint. According to the case made out in the Plaint, the Respondent started construction on a portion of the suit property admeasuring 15 feet x 10

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feet. An application for amendment of the Plaint was made at Exhibit – 15. The first amendment sought was for correcting the description of the suit property in Paragraph 1 of the Plaint by stating that the EastWest length of the suit property which is described as 15 feet should be amended as 25 feet. Similar amendment was sought by substituting the figure 15 by 25 in Paragraph 3 of the Plaint. By the amendment, a prayer was sought to be incorporated for removal of encroachment. Consequential amendment in the valuation clause was also prayed for. The said application was opposed by the Respondent. By the impugned order, the Trial Court permitted the Petitioner to carry out amendment save and except the amendment which related to correction of the measurement of the suit property.

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The submission of the learned counsel appearing for the Petitioner is that the amendment which was made at a pretrial stage should have been permitted and there was no reason to deny opportunity to correct the EastWest length of the suit property as there was a typographical error. The learned counsel appearing for the Respondent opposed the Petition by pointing out that the temporary injunction has been already granted and therefore if the amendment is allowed, it will cause prejudice to the Respondent.

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I have considered the submissions. Admittedly, the application for amendment was moved before commencement of trial. All that the Petitioner wants by the Clauses (a) and (b) of Paragraph 4 of the

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application for amendment is that the EastWest length of the suit property should be allowed to be corrected. In the Plaint, the EastWest length of the suit property is stated as 15 feet. The Petitioner wants to correct it by incorporating the figure 25 feet. Even if amendment is allowed, the Petitioner will have to establish his case that the Respondent has started the work of construction in the area 25 feet x 10 feet.

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My attention is invited to the order of temporary injunction. It is obvious that notwithstanding the grant of amendment, the order of temporary injunction will relate to the description of the suit property incorporated in the plaint prior to the amendment. If the Petitioner wants an order of temporary injunction in respect of the corrected area, the Petitioner will have to apply afresh for temporary injunction. The Court below has taken a hyper technical view of the matter. There was no reason to deny the amendment. Hence, I pass the following order.

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(a) The impugned order dated 30^th October, 2009 is modified and the application at Exhibit – 50 is allowed in its entirety.

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(b) It is made clear that the order of temporary injunction passed on 6^th July, 2007 will continue to operate only in respect of the suit property described in the unamended Plaint. If the Petitioner desires to claim

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injunction in respect of the entire area of 25 feet x 10 feet, the Petitioner will have to make a fresh application for temporary injunction.

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(c) The amendments to be carried out within two weeks from the date on which the writ of this Court is received by the Trial Court.

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(d) It is obvious that the Respondents will be entitled to file additional written statement to the amended plaint.

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(A.S.OKA, J)

Jagannath Krishna Gole v. Chandrakant Narayan Gole

Case brief

What is this about?

What did the court decide?

Jagannath Krishna Gole v. Chandrakant Narayan Gole

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

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