Allowed

Tarabai Ananda Phatangre v. Sahebrao Karbhari Phatangre

Bombay HC3 Dec 2018WP/2883/2014

Case brief

AI extract

What is this about?

The High Court quashed an order allowing an amendment to a plaint challenging a sale deed. The Court held that the amendment was barred by limitation as the petitioner had consciously chosen not to challenge the deed earlier, making the learned Civil Judge's decision a grave error contrary to settled law.

What did the court decide?

The impugned order dated 25 February 2014 allowing the amendment is quashed and set aside; writ petition disposed of accordingly.

Tarabai Ananda Phatangre Vs Sahebrao Karbhari Phatangre — Property and Title | Bombay HC (2018)

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Mrs Ankush 1 WP 2883.2014

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT AURANGABAD

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WRIT PETITION NO. 2883 OF 2014

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 Tarabai Ananda PhatangrePetitioner.

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Versus

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Sahebrao Karbhari PhatangreRespondent.

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Advocate for Petitioners : Mr Kulkarni Sanket S.
Advocate for Respondents : Mr Gore Ravindra Vitthal

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CORAM : N.M. JAMDAR, J.
Dated : 3 December 2018

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ORAL ORDER :-

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Heard counsel for the parties.

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2.Te petitioner has challenged the order passed by the

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learned Civil Judge dated 25 February 2014, allowing the application

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filed by the respondent/plaintiff to carry out the amendment in the
plaint.

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3. Te respondent/plaintiff had filed a suit for declaration

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that the sale deed dated 27 December 2004 be declared as null and

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Mrs Ankush 2 WP 2883.2014

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void. Te suit was filed on 28 February 2005. Te
respondent/plaintiff moved an application, for amendment on 3
September 2013 seeking to incorporate the averments and challenge to
the sale deed dated 10 June 2003. By the impugned order this
application has been allowed. Te learned Civil Judge has observed
that the amendment is necessary to avoid the multiplicity of
proceedings.

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4.Learned counsel for the petitioner relying upon the
decisions in the case of L. C. Hanumanthappa (Since dead)
represented by his Legal representatives Vs. H B Shivakumar1 and
Harinarayan G. Bajaj and another Vs. Vijay Agarwal and others2 and
submitted that not only the application for amendment was beyond
the period of limitation, but even the challenge to the sale deed of the
year 2003 could not be raised by way of an amendment and, since the
 relief was barred by limitation on the date of moving the amendment,

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1. (2016) 1 SCC

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2. 2012 (6) Bom.C.R. 706.

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Mrs Ankush 3 WP 2883.2014

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such amendment ought not have been allowed.

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5.Learned counsel for respondent relying on a decision in
the case of Dena Bank Vs. Apple Finance Limited and another and
Kotak Mahindra Bank Limited and another1 and submitted that in the

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cases of limitation regarding amendment, liberal view be taken and the
limitation is a mixed question of law and fact.

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6.In the present case, the respondent-plaintiff in the plaint
had referred to the sale deed dated 10 June 2003. Te suit was filed
challenging the sale deed of 27 December 2004. Te petitioner could
have raised the challenge to the said sale deed dated 10 June 2003. Not
only this was not done, but the respondent, thereafter, has given reason
for the same. Respondent has stated that this sale deed dated 10 June
2003, was cancelled. Terefore, the respondent specifically and
consciously chose not to challenge the sale deed on the ground that it
was cancelled. It is not an innocuous mistake to take a liberal view.

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________________
2014 (1) Bom.C.R. 227

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Mrs Ankush 4 WP 2883.2014

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Tis is a specific stand taken in the plaint.

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7.Terefore, when the amendment was moved in the year
2013, it was rightly opposed by the petitioner contending that sale

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deed of 2003 cannot now be challenged by way of an amendment
in the year 2013. Learned Civil Judge has committed grave error in
allowing such amendment. Relief which respondent sought by way of
an amendment, on the face of it was barred by of limitation. Tere is
no mixed question of law and fact. Petitioner had consciously not
challenged the sale deed earlier. In these circumstances, grant of
amendment was contrary to the settled position of law. Te impugned
order therefore, will have to be set aside. It is, however, made clear
that, whatever contentions that the respondent wants to raise based
upon his pleadings, they are obviously open for the respondent to
advance.

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Mrs Ankush 5 WP 2883.2014

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8.Accordingly, the impugned order dated 25 February 2014

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is quashed and set aside.

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9.Writ petition is accordingly disposed of in above terms.

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( N.M. Jamdar, J. )

Tarabai Ananda Phatangre v. Sahebrao Karbhari Phatangre

Case brief

What is this about?

What did the court decide?

Tarabai Ananda Phatangre v. Sahebrao Karbhari Phatangre

Case brief

What is this about?

What did the court decide?

What the court decided

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