Allowed

Pandurang @ Rajkumar Bhagwan @ Baburao Naikwade Thr Gpa Vidhya P Naikwade v. Bharatbai Bhagwan Naikwade and Ors.

Bombay HC14 Jul 2014WP/2439/2011

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of an amendment application in a property suit where the claim for possession was initially rejected as time-barred. The High Court set aside the lower court's order, quashing the rejection of the amendment.', disposing of the writ petition and granting the amendment application subject to costs.

What did the court decide?

Order impugned dated 17/03/2011 quashed and set aside; Application for amendment granted subject to costs of Rs. 2000/-.

Pandurang @ Rajkumar Bhagwan @ Baburao Naikwade Thr Gpa… — Property and Title | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 2439 OF 2011

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Pandurang @ Rajkumar s/o Bhagwan @ Baburao Naikwade, Age: 18, Occ: Agri., through power of attorney holder Sow. Vidhya Pandurang Naikwade, Age: Major, Occ: Household, R/o. Nilanga, Tq. Nilanga, Dist. Latur.

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...Petitioner

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versus

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Bharatbai w/o Bhagwan Naikwade, Age: 28 years, Occ: Household, R/o. Nilanga, Tq. Nilanga, Dist. Latur and others.

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...Respondent

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Mrs. Vaishali D. Jadhav,Advocate for petitioner.

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Mr. Dhananjay Mane, Advocate h/f Mr. Milind Patil, Advocate for respondent No.57.

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Mr. Madhav Gude, Advocate h/f Mr. S.R. Gastgar, Advocate for respondent No. 53 and 62.

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CORAM : N.W. SAMBRE ,J.

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DATED : 14TH JULY, 2014

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PER COURT :

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. This writ petition takes exception to the order dated 17/03/2011 passed by the Civil Judge, Senior Division, Nilanga below Exhibit-258 in Regular Civil Suit No. 519 of 1995. The petition

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is by plaintiff who sought amendment in the plaint praying insertion of prayer clause in regard to possession of the suit property.

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Learned Counsel for the petitioner-plaintiff submits that, the suit in which impugned order passed was numbered as Regular Civil Suit No. 519 of 1995, which was re-numbered as Regular Civil Suit No. 164 of 2004.

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The said application Exhibit-258 praying amendment came to be rejected by order dated 17/03/2011 on the ground that if the prayer for possession as is sought by way of amendment is granted, same is hit by the provisions of Limitation Act.

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While challenging the said order, learned Counsel for the petitioner-plaintiff has invited attention of this Court to earlier application for amendment moved by him vide Exhibit-39. Learned Counsel submits that by the order dated 19/03/2011 said amendment was granted permitting incorporation of paragraph-6A in the plaint which reads thus :

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“6-A. The defendant no. 1 having no interest and right in the suit land had illegally executed sale deeds in the name of several persons, therefore, those persons who have got invalid sale deeds from the defendant No.1 in respect of

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suit land have illegally occupied some portions out of suit land from the year 1996 onwards. Those persons have been impleaded to this suit as defendants No. 3 onwards and all these defendants have got no right and interest in the suit land, they are illegally in possession of the suit land, therefore, they are also liable to be evicted from the suit land .”

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Learned Counsel for the petitioner submits that if pleadings in paragraph-6A are permitted to be incorporated, in prayer clause, what remained to be incorporated is only prayer for eviction and possession which is sought to be inserted by way of amendment. Learned Counsel submits that the order impugned is liable to be quashed and set aside in view of the fact trial Court has lost sight of the said fact and grounds which are taken for rejection of the application. The issue of limitation is not raised or decided at this stage.

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As such, learned Counsel submits that the order impugned is liable to be quashed and set aside.

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Learned Counsel for the respondents has strongly objected the said prayer for grant of amendment. Learned Counsel for the respondents submits that the suit has reached at the stage of final hearing. If amendment as prayed is granted, same will be

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resulted in re-trial of the suit and as such, prayed rejection of the writ petition. Learned Counsel submits that the order passed by learned trial Court rejecting the application is just and proper.

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In the order impugned in the present petition, reason cited by learned trial Court for rejection of the application Exhibit-258 is claim for possession same is barred by limitation.

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In my opinion, the said issue cannot be gone into at this stage as to whether the claim made in amended prayer clause hit by the provisions of the Limitation Act or not. The issue that is required to be addressed by learned trial Court is whether trial is commenced or not and even if trial has commenced, whether the amendment as sought if granted cause any prejudice to the interest of the parties.

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In my opinion, once trial Court has granted amendment on 19/03/2011 permitting paragraph-6A to be incorporated which is reproduced hereinabove, non incorporation of the prayer for possession therein due to inadvertence by the plaintiff as submitted by learned Counsel appears to be proper reason.

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In that view of the matter, application ought to have been granted by prescribing some conditions.

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In that view of the matter, the order impugned dated 17/03/2011 below Exhibit-258 is quashed and set aside. The application for amendment Exhibit-258 stands granted subject to costs of Rs. 2000/- (Rs. Two thousand only). Writ petition is allowed in above terms.

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[ N.W. SAMBRE, J. ]

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Tupe/ 14.07.14

Pandurang @ Rajkumar Bhagwan @ Baburao Naikwade Thr Gpa Vidhya P Naikwade v. Bharatbai Bhagwan Naikwade and Ors.

Case brief

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Pandurang @ Rajkumar Bhagwan @ Baburao Naikwade Thr Gpa Vidhya P Naikwade v. Bharatbai Bhagwan Naikwade and Ors.

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