Quashed

Pradip Manohar Khole and Anr. v. Pravin Ramchandra Thakar Decd Thru Lhr and Ors.

Bombay HC12 Dec 2023WP/7267/2022

Case brief

AI extract

What is this about?

This court quashed the impugned order allowing amendment of plaint post-final arguments in a civil suit. It held that without a recorded finding on due diligence, the court lacked power to permit amendment. The petitioners act committed jurisdictional error.

What did the court decide?

Impugned order dated 17 April 2019 allowing amendment of plaint is quashed and set aside; application below Exhibit 97 is rejected.

Pradip Manohar Khole and Anr. Vs Pravin Ramchandra Thakar… — Property and Title | Bombay HC (2023)

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41-wp7267-2022.doc

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AGK

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.7267 OF 2022

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Digitally signed by ATUL ATUL GANESH GANESH KULKARNI KULKARNI Date: 2023.12.12 17:12:59 +0530

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Pradip Manohar Khole & Anr.… Petitioners
V/s.
Pravin Ramchandra Thakar,
deceased through LRs & Ors.… Respondents

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Mr. Chaitanya Nikte with Mr. Prajit S. Sahane and Mr.
Ritvij Kale for the petitioners.

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Mr. Hitesh B. Sangle for respondent No.1B.

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CORAM :AMIT BORKAR, J.

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DATED:DECEMBER 12, 2023

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P.C.:

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1.The petitioner is challenging order passed by the Trial Court
allowing amendment of plaint at the stage of arguments.

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2.Respondent No.1/original plaintiff filed Special Civil Suit
No.898 of 2012 seeking cancellation of sale deed dated 6 July
2012 executed by respondent Nos.2 to 9 in favour of the
petitioners, i.e. original defendant Nos.9 and 10. Further relief of
permanent injunction against the petitioners not to disturb
possession of the plaintiff is sought.

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3.The parties filed their written statement. Plaintiff filed
affidavit of evidence on 22 August 2017. Therefore, there was
commencement of trial.

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4.On 2 April 2019 after completion of oral evidence, the Trial
Court fixed the suit for final arguments. On 12 April 2019 parties

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41-wp7267-2022.doc

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concluded their final arguments. However, on 12 April 2019
plaintiff filed an application for amendment of plaint to add relief
of setting aside sale deed in favour of the petitioners on the
ground of right of preemption. The Trial Court allowed the
amendment on the ground that such relief was initially prayed in
the plaint. However, the relief was scored out. The plaintiff did not
sign the modified portion of the plaint. Therefore, the Trial Court
held that such abandonment of prayer cannot be treated as giving
up of claim by consent of the plaintiff.

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5.Having heard advocates for the parties, it needs to be stated
that the parameters for exercise of power under Order 6 Rule 17 of
the Code of Civil Procedure, 1908 after amendment of 2002
require the Court to first record a finding regarding exercise of due
diligence. In absence of recording such a finding regarding due
diligence, the Court has no power to allow the amendment (see
Vidyabai v. Padmalatha, (2009) 2 SCC 409; Pandit Malhari
Mahale v. Monika Pandit Mahale & Ors., (2020) 11 SCC
549).

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6.In the facts of the present case, it is not in dispute that
parties concluded their final arguments and the plaintiff filed an
application after conclusion of arguments seeking permission to
incorporate prayer of setting aside sale deed on the ground of
preemption. The reason assigned by the plaintiff in the application
for amendment is that advocate appearing for the plaintiff at the
relevant time without authority scored out relief of preemption. In
this context, it needs to be noted that the suit was initially filed
through the advocate for the plaintiff. On the date civil suit was

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41-wp7267-2022.doc

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filed, the plaintiff had signed the plaint. The deletion of prayer is
an amendment carried out by the advocate for the plaintiff. It is
common knowledge that in the Trial Court amendment is
physically carried out by the advocate and not by the parties to the
suit. Therefore, now the legal representatives of the plaintiff
cannot disown the act of the advocate for the plaintiff. If the
advocate carried out such amendment without authority of the
plaintiff, remedy of the legal representatives of the plaintiffs is
somewhere else and not to seek amendment of the plaint.

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7.Apart from the said fact, in my opinion, such reason blaming
advocate for scoring out the prayer and proceeding with the suit
till conclusion of arguments dis-entitles the plaintiff from seeking
amendment of the plaint. Therefore, the Trial Court committed
error of jurisdiction by allowing the amendment after conclusion
of arguments without recording finding of due diligence. The
impugned order, therefore, cannot be sustained. Hence, following
order:

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a)The impugned order dated 17 April 2019 passed by the Civil
Judge Senior Division, Pune in Special Civil Suit No.898 of 2023 is
quashed and set aside;

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b)Application below Exhibit 97 in Special Civil Suit No.898 of
2023 is rejected.

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8.The writ petition stands disposed of in above terms. No
costs.

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(AMIT BORKAR, J.)

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Pradip Manohar Khole and Anr. v. Pravin Ramchandra Thakar Decd Thru Lhr and Ors.

Case brief

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What did the court decide?

Pradip Manohar Khole and Anr. v. Pravin Ramchandra Thakar Decd Thru Lhr and Ors.

Case brief

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