Single judge dismissal of a writ petition challenging an order allowing amendment of a plaint to add averments regarding possession and seek specific performance, holding no case made for interference under Article 227.
Writ petition dismissed; additional written statement filed by Defendants allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
wp-2113.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2113 OF 2013
Sou. Kamalabai Mahadeo Mirgane : Petitioner. Versus Gokuldas Ambadas Shelake and anr. : Respondents.
Mr. G M Savagave for the Petitioner.
CORAM : R. M. SAVANT, J. DATE : 16th April 2013
P.C.
1 The writ jurisdiction of this Court is invoked against the order dated 13/12/2012 passed by the learned Civil Judge, Junior Division, Barshi by which order the application filed by the Plaintiff for amendment of the plaint in Regular Civil Suit No.7 of 2012 (Old Special Civil Suit No.131 of 2008) came to be allowed.
2 The suit in question has been filed by the Plaintiff i.e. the Respondent No.1 for a declaration that the Power of Attorney dated 27/9/2005 on the basis of which the sale deed dated 7/10/2005 has been executed in respect of the suit property in favour of the Defendant No.2 be declared as cancelled. The suit has also been filed for the relief that the sale deed dated 19/10/2005 executed by the Defendant No.1 in favour of the Defendant No.2 be declared as cancelled.
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3 By the amendment sought the Plaintiff seeks to incorporate Paragraph No.9A which contains the averments in respect of the Regular Civil Suit No.4 of 2009 filed by the Defendant No.2 in the present suit against the Plaintiff. The orders passed on the application Exhibit 5 in the said suit in favour of the Defendant No.2 who is the Plaintiff in that suit and the rejection of the Appeal filed by the Plaintiff by the Lower Appellate Court has also been mentioned in the said Paragraph No.9A. It is further averred that on the basis of the said orders that the Defendant No.2 has illegally taken possession of the suit property from the Plaintiff. Based on the said averments the Plaintiff seeks to incorporate Paragraph 14-D-1 which is a prayer that the Plaintiff should be handed over the possession on ownership basis.
4 The Petitioner i.e.the Defendant No.2 opposed the said application by filing his reply. The Trial Court has by the impugned order dated 13/12/2012 allowed the said application on the ground that the same would result in avoidance of multiplicity of proceedings, and that the amendment could be allowed as the same would not cause any prejudice to the Defendants.
5 In my view, considering the suit as originally filed and considering the amendments which are sought to be incorporated, no exception could be taken to the impugned order. Hence no case for interference in the writ
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jurisdiction of this court under Article 227 of the Constitution of India is made out. The above Writ Petition is accordingly dismissed. However, it is open for the Defendants to file their Additional Written Statement to the amended plaint within the time that would be fixed by the Trial Court.
[R.M.SAVANT, J]
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3 issues framed by the court
Whether interference is justified under Article 227 against an order allowing amendment of plaint to avoid multiplicity of proceedings.
Whether the proposed amendment would cause prejudice to the defendants.
Whether the correctness of the lower court's order warrants writ jurisdiction under Article 227.
1 provisions across 1 enactments
Sou. Kamalabai Mahadeo Mirgane
Gokuldas Ambadas Shelake
R. M. Savant
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
