Partly allowed

Shahadu Vithhal Mahajan v. Dwarkabai Baburao Chaudhari and Ors.

Bombay HC26 Apr 2013WP/3334/2012

Case brief

AI extract

What is this about?

This is a writ petition challenging the trial court's rejection of an application to amend a plaint. The High Court held that seeking a declaration regarding a 1936 sale deed was time-barred, but allowed the amendment to add a necessary party and record measurement details.

What did the court decide?

Application to amend plaint allowed to the extent of clauses (1), (2) and (7); prayer for declaration regarding 1936 sale deed rejected as time-barred.

Shahadu Vithhal Mahajan Vs Dwarkabai Baburao Chaudhari and Ors. — Partition | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD.

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WRIT PETITION NO.3334 OF 2012

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Shahadu Vithhal Mahajan. .. PETITIONER.
VERSUS

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Dwarkabai Baburao Chaudhari
and others.

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 .. RESPONDENTS.

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Shri Patil Hitendra D., Advocate for Petitioner.
Shri S.B. Yawalkar, Advocate for R.Nos.1.
R.No.2-A to 3 served.

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CORAM: S.S. SHINDE,J.

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 26th April, 2013.

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PER COURT:

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1. Rule, returnable forthwith. By consent of

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the parties, taken up for final hearing.

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2. Though other respondents are served, none appears for them.

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3. The learned Counsel for the petitioner

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invited my attention to the contents of the
application which was filed for amendment in
the plaint. He submits that by allowing such
amendment, nature of the suit is not going to
be changed. Since there was measurement
during the pendency of the suit and by way of
clause (2) of the proposed amendment, the
plaintiff wishes to insert details of the
measurement carried out during pendency of the
suit. It is submitted that during pendency of
the suit, the proposed defendant No.4 Ravindra
Baburao Chaudhari has purchased part of the
suit property. Therefore, he is necessary
party to the suit. However, the trial Court
has rejected the application mainly on the
ground that no due diligence has been
disclosed by the applicant - plaintiff.

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4.The learned Counsel for the petitioner
further submits that even by way of the
amendment in the plaint, the plaintiff sought
declaration in respect of sale deed executed

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in the year, 1936. He submits that if such
amendment is allowed, no prejudice will be
caused to the defendants.

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5.The learned Counsel for respondent No.1
invited my attention to the averments in the
affidavit-in-reply and submitted that by way
of amendment, the plaintiff wishes to question
the sale deed which was executed in the year,
1936. Therefore, certainly such prayer to
seek declaration about the sale deed executed
in 1936 is barred by limitation and therefore,
application for amendment seeking relief of
such declaration cannot be entertained. It is
submitted that if the amendment is allowed it
will change nature of the suit. Therefore,
relying upon the reasons recorded by the trial
Court and averments in the affidavit-in-reply,
learned Counsel for the respondent No.1
submits that the petition may be rejected.

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6. I have given careful consideration to the

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submissions advanced by the learned Counsel
for the parties and with their able
assistance, perused the entire material placed
on record including the application which was
filed for amendment of the plaint, reply filed
by the respondents. In my opinion, so far as
prayer for amendment of the plaint in respect
of sale deed executed in the year, 1936 is
concerned, it cannot be entertained since it
is time barred. Therefore, the trial Court
was correct in not allowing such amendment
which would change nature of the suit.
However, upon reading clauses (1),(2) and (7)
of the application for amendment, in my
opinion, the said amendment should have been
allowed. So far as clause No.(1) is

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concerned, the petitioner wishes to add Shri
Ravindra Baburao Chaudhari as party defendant
since he has purchased part of the suit
property during pendency of the suit. So far
as clause (2) is concerned, during pendency of
the suit, measurement has been carried out by

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the competent Government Officer and,
therefore, to bring on record such
measurement, amendment to the plaint is
necessary and it should have been allowed by
the trial Court.

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7.In the result, application below Exh.60 in
RCS NO.85/2005 filed for amendment is allowed
to the extent of clauses (1),(2) and (7). The
writ petition is partly allowed and stands
disposed of. Rule made absolute in above
terms with no order as to costs.

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(S.S. SHINDE, J.)

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PLK/*

Shahadu Vithhal Mahajan v. Dwarkabai Baburao Chaudhari and Ors.

Case brief

What is this about?

What did the court decide?

Shahadu Vithhal Mahajan v. Dwarkabai Baburao Chaudhari and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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