Dismissed¶34

Bharati Shrimanti Koshti and Ors. v. Shirajuddin Abbas Pathan and Ors.

Bombay HC23 Jan 2026WP/17840/2024

Case brief

AI extract

What is this about?

Keywords: amendment of plaint; prayer clause; Order VI Rule 17 CPC proviso; due diligence; amendment after commencement of trial; cross-examination stage; withdrawal of admission; loss of valid defence; exceptions in LIC v. Sanjeev Builders (para 70 guidelines); Pandit Malhari Mahale (2020) 11 SCC 549; writ jurisdiction — no interference absent material irregularity or perversity; Reg. Civil Suit No. 280 of 2008 (Sangli); Exh. 81; Exh. 97; Writ Petition No. 17840 of 2024; Bombay High Court Kolhapur Circuit Bench; M.M. Sathaye, J.; decided 25 February 2026.

What did the court decide?

The Trial Court's view that due diligence was not established is a most probable view; there is no material irregularity or perversity warranting interference in writ jurisdiction, so the writ petition fails. ¶33

Bharati Shrimanti Koshti and Ors. vs Shirajuddin Abbas Pathan and Ors. — Bombay HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the writ petition challenging the Trial Court's order dated 13.08.2024 rejecting the amendment application (Exh. 97) in Reg. Civil Suit No. 280 of 2008 deserves interference. +1 more

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Court's answer

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Ratio / Principle

Both amendment applications were made in a most casual manner; removing Defendant Nos. 1 & 2 from the injunction prayer and then seeking to re-include them is a flip-flop that cannot be permitted as it clearly indicates lack of due diligence.

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Key takeaways

The proviso to amended Order VI Rule 17 CPC is mandatory in nature (the word used is 'shall'): no application for amendment shall be allowed unless the party could not have raised the matter despite due diligence.ratio¶26
The present amendment falls within the exceptions in LIC Vs. Sanjeev Builders: allowing it would amount to withdrawal of the Plaintiffs' admission that they seek no relief against Defendant Nos. 1 & 2, and Defendant Nos. 1 & 2 would lose the valid defence that Plaintiffs did not want to claim any relief against them.ratio¶32

Detailed headnote1 paragraphs

Bombay High Court (Kolhapur Circuit Bench), M.M. Sathaye, J.: Writ petition dismissed against the order dated 13.08.2024 of the 2nd Joint Civil Judge, Senior Division, Sangli, rejecting the plaintiffs' application (Exh. 97) in Reg. Civil Suit No. 280 of 2008 (an injunction suit) to re-include defendant Nos. 1 and 2 in the prayer clause. Held: (i) the proviso to amended Order VI Rule 17 CPC is mandatory — no amendment shall be allowed after trial commences unless the party could not have raised the matter despite due diligence; (ii) having earlier excluded defendant Nos. 1 & 2 and included Nos. 3 & 4 via Exh. 81, the attempt to reverse course ('flip-flop') after the suit was fixed for cross-examination was casual and showed lack of due diligence; (iii) the re-inclusion fell within the exceptions summarised in para 70 of LIC Vs. Sanjeev Builders, since it would amount to withdrawal of the plaintiffs' admission and would deprive defendant Nos. 1 & 2 of the valid defence that no relief was claimed against them; (iv) in Pandit Malhari Mahale (2020) 11 SCC 549 the Supreme Court dismissed an amendment application where satisfaction about due diligence was not recorded; (v) the Trial Court's view was most probable, with no material irregularity or perversity calling for writ interference. No order as to costs.

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507 WP-17840-2024 @.doc

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Digitally signed by HUSENBASHA HUSENBASHA RAHAMAN RAHAMAN NADAF NADAF Date: 2026.02.26 19:43:45 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIRCUIT BENCH AT KOLHAPUR CIVIL APPELLATE JURISDICTION WRIT PETITION NO.17840 OF 2024

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Bharati Shrimant Koshti & Ors. ….Petitioners Versus Shirajuddin Abbas Pathan & Ors. ….Respondents

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Mr. Kuldeep U. Nikam a/w. Pratik Patil, Unmesh Jamdar & Rushikesh Desai, Advocates for the Petitioner Mr. Padmanabh D. Pise, Advocate for Respondent 2A, 2B & 3. ***

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CORAM : M.M. SATHAYE, J. DATE : 25^th FEBRUARY, 2026

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P.C. :

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The Petitioners are challenging the impugned order dated 13.08.2024 passed below Exh. 97 in Reg. Civil Suit No. 280 of 2008 by 2^nd Jt. Civil Judge, Senior Division, Sangli by which application for amendment is rejected.

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The Petitioners have filed the said suit for injunction and for mandatory direction for restoring the suit property to its original form in case any changes are made.

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Learned counsel for the Petitioners submitted that the amendment is technical in nature and they only want to include defendant Nos. 1 and 2 in the prayer for injunction. He submitted that the Court is empowered to amend the proceedings at any stage even after commencement of the trial. He submitted that lenient view be taken and amendment should be allowed for complete justice between the parties and for avoiding multiplicity of the proceedings. He relied on Judgment of LIC Vs. Sanjeev Builders [Criminal Appeal

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Husen

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507 WP-17840-2024 @.doc

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arising out of SLP (C) No. 22443 of 2019 Judgment dated 01.09.2022.] in support of his case.

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Learned counsel for Respondent Nos. 2A, 2B and 3 supported the impugned order. He submitted that the Trial Judge has recorded clear finding that since the Trial has commenced and no due diligence is found to have been exercised by the Petitioners, the amendment cannot be granted. He relies on the judgment of Pandit Malhari Mahale Vs. Monika Pandit Mahale & Ors. [(2020) 11 SCC 549], in support of his case.

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I have considered the rival submissions. Perused the record.

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It is seen from the record that prior to filing present amendment application the Petitioners had earlier filed one more application Exh. 81 for amendment in the prayers by which Defendant Nos. 1 & 2 were excluded from the prayer clause and Defendant Nos. 3 and 4 were included. Thus, it is apparent that the Petitioners on their own motion removed the names of Defendant Nos. 1 & 2 from the prayer clause of injunction. In such situation, the present application was filed. Perusal of the earlier application Exhibit 81 indicates that it is casually stated by the Petitioners that ‘recently while studying the documents, it is found that the proposed amendment has remained to be incorporated by inadvertence’.

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Perusal of present application Exh.97 indicates that after the suit was fixed for cross-examination, the application was moved contending that for technical difficulty, the present amendment has remained to be incorporated. In present application, the proposed amendment is for again inclusion of Defendant Nos. 1 & 2 in the

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Husen

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507 WP-17840-2024 @.doc

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prayer clause.

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Therefore, it is clear that both the amendment applications have been made in most casual manner and it also indicates that the Petitioners are not serious about against whom the prayer of injunction is required.

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Initially, Defendant Nos. 1 & 2 were removed from the prayer and Nos. 3 and 4 were included. Now again, the Petitioners want to include Defendant Nos. 1 & 2. Such flip-flop undertaken by the Petitioners cannot be permitted as it clearly indicates lack of due diligence.

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The provisions of Order VI Rule 17 of Civil Procedure Code, 1908 (‘CPC’ for short) was amended in 2002 with a clear intention of curtailing amendments after the trial commences for expeditious disposal, unless due diligence is established. The proviso to amended Order VI Rule 17 mandates that unless the Court comes to the conclusion that party could not have raised the matter regarding amendment in spite of due diligence, no application for amendment shall be allowed. The proviso is mandatory in nature, the word used is ‘shall’.

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In the judgment of Pandit Malhari Mahale (Supra) , the Hon’ble Supreme Court had found that the satisfaction of the Court about due diligence was not recorded and as such the amendment application was dismissed by the Hon’ble Supreme Court.

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So far as the judgment relied upon by the learned counsel for the Petitioners in case of LIC Vs. Sanjeev Builders (Supra) concerned, the guidelines are summarized in paragraph No. 70. It is clarified by

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Husen

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507 WP-17840-2024 @.doc

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the Hon’ble Supreme Court that all amendments are to be allowed which are necessarily for determining the real question in controversy provided, by the proposed amendment the party seeking amendment does not seek to withdraw any clear admission by the party and unless by the amendment, the other side loses a valid defence. In the present case, by earlier amendment Defendant Nos. 1 and 2 were excluded. Now Defendant Nos. 1 and 2 are sought to be included again. Therefore Defendant No. 1 & 2 would lose a valid defence that Plaintiffs did not want to claim any relief against them. Allowing the present amendment would also amount to withdrawal of an admission by Plaintiffs that they do not want to pray any relief against Defendant Nos.1 & 2. In that view of the matter, facts of the present case fall under the exceptions provided by the Hon’ble Supreme Court in the case of LIC Vs. Sanjeev Builders (Supra).

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Viewed in the light of what is observed above, when the impugned order is perused, in paragraph No.10 thereof, the Trial Court has considered the changing stands taken by the Petitioners. The Trial Court has considered that suit is of 2008 (governed by amended CPC) and the same is part-heard and is at the stage of cross-examination of the witness of the Plaintiffs. On the basis of material on record, the Trial Court has held that due diligence is not established. Therefore amendment can not be allowed. The view taken by the Trial Court is most probable view and there is no material irregularity or perversity for this Court to interfere in writ jurisdiction.

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