Allowed

Shri. Sachin Dnyanoba Wakadkar and Anr. v. Shri. Dnyanoba Vithoba Wakadkar and Ors.

Bombay HC26 Sept 2019WP/3899/2019

Case brief

AI extract

What is this about?

The High Court allowed a writ petition against an order rejecting an application for amendment of plaint under Order 6 Rule 17 CPC. The High Court held the amendment was consequential and allowed the plaintiffs to record averments regarding mortgage encumbrance on the suit property.

What did the court decide?

The impugned order is set aside; Application Exhibit 128 is allowed and amendment to be carried out within 2 weeks.

Shri. Sachin Dnyanoba Wakadkar and Anr. Vs Shri. Dnyanoba Vithoba… — Partition | Bombay HC (2019)

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907..doc

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DDR

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 3899 OF 2019

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Sachin Dnyanoba Wakadkar & anr...Petitioners

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vs.
Dnyanoba Vithoba Wakadkar & ors...Respondents.

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Shri M.S. Lagu i/b. Shri K.A, Dhavle for petitioners.
Shri S.R. Nargolkar a/w. Mr. Arjun Kadam for respondent No.15.

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CORAM : M.S.KARNIK, J.

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 DATE : 26th SEPTEMBER, 2019

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P.C.:

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Heard learned counsel for the petitioners.

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2.None for respondent Nos. 1 to 14 though they are

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duly served in compliance with the order passed by this Court
on 29/8/2019.

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3.Shri Nargolkar appears for respondent No.15 – The
Seva Vikas Co-op. Bank Ltd.

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4.The petitioners are the original plaintiffs. The suit is

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filed for partition and separate possession and cancellation of

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the sale deed executed by respondent No.1 in favour of

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907..doc

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respondent No. 12. Further they have challenged the sale deed
dated 30/12/2009 executed by respondent No.1 in favour of
respondent No.12.

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5.The plaintiffs filed an application under Order 6 Rule
17 of the Code of Civil Procedure for amendment of the Plaint. It
is the contention of the plaintiffs that the property which is the
subject matter of sale deed is encumbered or mortgaged by
respondent Nos. 12 to 14 with respondent No.15 – Bank.

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6.By the proposed amendment the plaintiffs wanted to
bring on record the averments regarding
encumbrance/mortgage by respondent Nos. 12 to 14 with
respondent No.15 - Bank. The trial Court rejected the
application for amendment on the ground that the plaintiffs
have not given details about the alleged encumbrance or
mortgage. It is further held that the plaintiffs have registered lis
pendense with Sub-Registrar Haveli, hence, no prejudice would
be caused to the plaintiffs. The application is rejected by the trial

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Court.

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907..doc

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7.Respondent Nos. 1 to 14 have not appeared despite

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service.

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8.Learned counsel for respondent No. 15 opposed this
Petition. He supported the order passed by the trial Court. He
submitted that the averments made in the proposed application
are absolutely vague and no details of encumbrance or mortgage
are provided for. He further would submit that as lis pendence
has already been registered with Sub-Registrar and as rightly
observed by the trial Court, no prejudice would be caused to the
plaintiffs if the order passed by the trial Court stands.

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9. I have gone through the order passed by the trial

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Court.

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10.The trial Court has framed the issues. Before
recording the evidence the application Exhibit 128 is moved by
the plaintiffs for amendment of the Plaint. By way of the
proposed amendment the plaintiffs only wanted to bring on

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907..doc

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record the subsequent events regarding encumbrance or
mortgage of the suit property which is the subject matter of the
suit in favour of defendant No.15 by defendant Nos.12 to 14.

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11.In my view the application Exhibit 128 deserves to
be allowed. The plaintiffs only wanted to bring on record the
averments regarding encumbrance or mortgage by respondent
Nos. 12 to 14 with respondent No.15 – Bank which is in the
nature of a consequential amendment as the nature of suit does
not change. There is no contest by defendant Nos. 1 to 14 to this
Petition. The Petition therefore deserves to be allowed.

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12.The impugned order is set aside.

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13. Application Exhibit 128 is allowed. Amendment to

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be carried out within a period of 2 weeks from the date of the
uploading of the order.

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14.With these observations, the Petition is disposed of.

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(M.S.KARNIK, J.)

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Digitally signed by Diksha Diksha Rane Date: Rane 2019.09.28 14:47:26 +0530

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Shri. Sachin Dnyanoba Wakadkar and Anr. v. Shri. Dnyanoba Vithoba Wakadkar and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Sachin Dnyanoba Wakadkar and Anr. v. Shri. Dnyanoba Vithoba Wakadkar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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