Allowed¶8

Onkar S/O Khanu Jamunkar v. Ramesh S/O Pandurang Dhandekar and Another

Bombay HC17 Jul 2025WP/801/2024

Case brief

AI extract

What is this about?

Amendment of plaint; Order 6 Rule 17 Code of Civil Procedure; subsequent events; commencement of trial; affidavit of evidence not filed; interim relief rejected (Exh.5); dispossession of plaintiff; survey number correction Survey No.12 to Survey No.12/1-A; joining legal representatives of deceased Pandurang; Regular Civil Suit No.62/2020; Regular Civil Suit No.72/2021; additional written statement; writ petition allowed; Nagpur Bench.

What did the court decide?

Impugned order set aside; application Exh.26 allowed; amendment to be carried out within four weeks; defendants free to file additional written statement to the amended plaint. ¶8

Onkar S/O Khanu Jamunkar Vs Ramesh S/O Pandurang Dhandekar and Another — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Impugned order set aside; application Exh.26 allowed; amendment to be carried out within four weeks; defendants free to file additional written statement to the amended plaint.

¶8

Issue for consideration

Whether the trial Court rightly rejected the plaintiff's amendment application (Exh.26) under Order 6 Rule 17 CPC on the ground that the trial had commenced, when the plaintiff's affidavit of evidence was yet to be filed. +2 more

¶4

Court's answer

Though issues were framed, the affidavit of evidence of the plaintiff was yet to be filed; relying on the Division Bench judgment of this Court, the trial cannot be said to have commenced, and the trial Court therefore erred in rejecting the amendment application on the ground that the trial had commenced.

¶6

Ratio / Principle

There is no impediment in amending the plaint to incorporate facts which have occurred during the pendency of the suit.

¶6

Key takeaways

The defendant had already raised the survey-number issue in the written statement, so it remains open to the defendant to contest the plaintiff's claim on that score even if the amendment permitting the correction is allowed.ratio¶6
Since two legal representatives of the deceased Pandurang are already parties to the suit, there is no reason or justification in refusing to join his other legal representatives as defendants.ratio¶7

Detailed headnote1 paragraphs

Bombay High Court (Nagpur Bench) allows writ petition against rejection of amendment application (Exh.26) under Order 6 Rule 17 CPC in Regular Civil Suit No.62/2020: with issues framed but the plaintiff's affidavit of evidence not yet filed, the trial cannot be said to have commenced, so the trial Court erred in refusing amendment on that ground; subsequent events (plaintiff's dispossession after rejection of interim relief Exh.5) may be pleaded, and correction of the survey number (Survey No.12 to Survey No.12/1-A) may be incorporated, the defendant remaining free to contest that claim since it is already raised in the written statement; other legal representatives of the deceased Pandurang are to be joined as defendants; amendment within four weeks, with liberty to file additional written statement.

¶1

wp801.24.O.odt

¶2

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

¶4

WRIT PETITION NO.801 OF 2024

¶5

(Onkar s/o Khanu Jamunkar Vs. Ramesh s/o Pandurang Dhandekar and another)

¶6

---------------------------------------------------------------------------------------------------------------------------------Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar’s Orders.

¶7

Mr. A. J. Thakkar, Advocate for Petitioner. Mr. A. S. Manohar, Advocate for Respondent Nos.1 & 2.

¶8

CORAM: R. M. JOSHI, J. DATE: 17th JULY, 2025.

¶9

By consent of both sides heard finally at the stage of admission.

¶10

This petition takes exception to the order passed passed below Exh.26 in Regular Civil Suit No.62/2020 by the trial Court rejecting application filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure which sought subsequent events to be brought on record so also correction in the survey number of the suit property.

¶11

There is no dispute about the fact that the Regular Civil Suit No.62/2020 came to be filed against the defendants restraining them from causing interference from the suit property. The suit came to be resisted by the defendants. Application Exh.5 for interim relief filed by the plaintiff was rejected by the trial Court. Thereafter the application Exh.26 was filed by the plaintiff contending that after passing of order below Exh.5, the plaintiff is

¶12

wp801.24.O.odt

¶13

¶14

dispossessed from the suit property. Apart from these pleadings, the pleading was also sought to be incorporated by correcting the survey number of the suit property from Survey No.12 to Survey No.12/1-A by claiming that the old Survey No.12 is now being known as Survey No.12/1-A. This application came to be resisted by the defendant. Since the trial Court rejected the application. Hence, this petition.

¶15

Learned Counsel for the petitioner submits that the trial Court has committed error in rejecting the application on the ground that the trial has commenced when the affidavit of evidence of the plaintiff is yet to be filed. It is his further contention that there cannot be any impediment in amending the plaint to incorporate subsequent facts. In so far as the correction of the survey number of the suit property is concerned it is his submission that it is always open for the defendant to contest the said during the course of the trial.

¶16

Learned Counsel for the defendant vehemently opposed the petition. According to him, having regard to the facts as they appear from the record so also considering the rejection of another suit filed by the plaintiff herein being Regular Civil Suit No.72/2021, there is no reason to cause interference in the impugned order.

¶17

There is no dispute about the fact that though the issues are framed by the trial Court, the affidavit of evidence of the plaintiff is yet to be filed on record. In view

¶18

wp801.24.O.odt

¶19

¶20

of the judgment of the Division Bench of this Court in case trial cannot be said to have commenced in the instant case. Hence, the trial Court has committed error in rejecting the application on the said ground. There cannot be any impediment in allowing the incorporation of the facts which have occurred during the pendency of the suit. The only question which could be argued by the defendant is in respect of correction in the survey number of the suit property. Perusal of the written statement indicates that the said issue has already been raised by the defendant and hence it is always open for the defendant to contest the said claim of the plaintiff, even if the amendment is allowed.

¶21

One more aspect comes up for consideration is about the joining of LR’s of Pandurang. There is no dispute about the fact that two legal representatives of the deceased Pandurang are already parties to the suit and as such there would not be no reason or justification in not joining other LR’s. of Pandurang as defendants.

¶22

As a result of above discussion the impugned order stands set aside. Application Exh.26 stands allowed. Amendment be carried out within a period of four weeks from today it would be open for the defendants to file additional written statement to the amended petition.

¶23

9. Petition stands allowed.

¶24

NSN

Onkar S/O Khanu Jamunkar v. Ramesh S/O Pandurang Dhandekar and Another

Case brief

What is this about?

What did the court decide?

Onkar S/O Khanu Jamunkar v. Ramesh S/O Pandurang Dhandekar and Another

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Arun S/O. Ramrao Fasale vs Gajanan S/O. Anandrao Sontake and Others

Rajesh Dayalla Vyas vs Smt. Geetabai Baburao Kannamwar

Rajesh Dayalal Vyas vs Rekha Prakash Bejalwar

Parasram Aushadhalaya Thr. Managing Trustee, Shri. Vinay S/O Rameshwar Ughade Vs Pralhad Nathuji Shende and Others

Parasram Aushadhalaya Thr. Managing Trustee, Shri. Vinay S/O Rameshwar Ughade Vs Pralhad Nathuji Shende and Others

Parasram Aushadhalaya Thr. Managing Trustee, Shri. Vinay S/O Rameshwar Ughade Vs Pralhad Nathuji Shende and Others