High Court dismissed writ petitions challenging the trial Court's order allowing amendment to plaint under Order VI Rule 17 CPC. The Court held no error was committed as the amendment benefited defendants and caused no prejudice.
Writ petitions dismissed; order allowing amendment upheld.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
Writ Petition NO. 5600 OF 2015 WITH Writ Petition NO. 5779 OF 2015
SHRI. SUDESH BHARAT MAYEKAR Versus
MRS. JYOTI PRAKASH MADYE AND ORS
...Petitioner
...Respondents
Mr. Abhay D. Parab, Advocate for the Petitioner.
CORAM : R. G. KETKAR, J.
DATE : 23rd MARCH, 2016
P.C.
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the learned trial Judge allowed the application made by the plaintiffs (respondent Nos.1 to 5) under Order VI Rule 17 of Code of Civil Procedure, 1908 (for short, 'CPC') for amending the plaint. The plaintiffs instituted Regular Civil Suit No.1/2007 inter alia praying for partition and separate possession of half share in the suit properties; for declaration that defendant Nos.8 to 11 have no right, title and interest in certain properties and that the name of defendant No.2 Bharat Kashiram Mayekar, since deceased recorded in the column of Bhogwatdar (cultivator) is illegal; for perpetual injunction restraining defendant No.2 from obstructing the possession of the plaintiffs in respect of property No.2 as also restraining defendant No.2 from carrying out construction.
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amendment, now the plaintiffs contend that said property is jointly owned by them and defendant Nos.1 to 7. The plaintiffs therefore filed application for amending the plaint in R.C.S. No.1 of 2007 to that effect.
others vs. Padmalatha and another, (2009) 2 SCC 409 , the impugned order deserves to be set aside. He further submitted that whereas in the unamended plaint, the plaintiffs specifically came with the case that survey No.34 Hissa No.20 is self-
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acquired property of Pandurang and the branch of Kashiram has no right, title and interest, by the proposed amendment the plaintiffs want to contend that it is the joint family property of the plaintiffs and defendant Nos.1 to 7. The proposed amendment is inconsistent with the unamended plaint. Even on this ground, the learned trial Judge was not justified in allowing the amendment.
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have accepted the share of defendant Nos.1 to 7 in survey No.34 Hissa No.20 and which will not cause any prejudice to defendant Nos.1 to 7 and in particular defendant No.2. In fact the proposed amendment enures to the benefit of defendant Nos.1 to 7. In view thereof, I do not find that the learned trial Judge has committed any error in passing the impugned order. Hence, the petitions fail and the same are dismissed.
Deshmane (PS)
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3 issues framed by the court
Whether the trial Court erred in allowing amendment to plaint after commencement of trial.
Whether the proposed amendment in plaint causes prejudice to the defendants.
Whether an error or defect in the impugned order should be objected to in writ petition instead of memorandum of appeal.
Colour shows how this judgement treated each authority
Vidyabai and others vs. Padmalatha and anotherReferred¶25
Vidyabai and others vs. Padmalatha and another, (2009) 2 SCC 409 · Who else cites this
2 provisions across 1 enactments
Shri. Sudesh Bharat Mayekar
Mrs. Jyoti Prakash Madye
R. G. Ketkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
