Samrat Sureshchandra Patel v. Smt. Kaveribai Jamnadas Gujrathi (Dead) Decd. Through Lrs. And ORS.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

CIVIL APPELLATE JURISDICTION.

WRIT PETITION NO. 3744 OF 2016 Samrat Sureshchandra Patel ... Petitioner V/s.

Smt. Kaveribai Jamnadas Gujrathi & Ors.

... Respondents -------------------- Mr. Sachin Chandan for the Petitioner.

Mr. S.S. Kulkarni for the Respondent No.10.

CORAM : K. K. TATED, J.

DATED : 22/06/2016 P.C.:

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Heard learned Counsel for the parties.

By this petition under Article 227 of the Constitution of India, the petitioner original plaintiff challenges the order dated 06.02.2016 passed by Joint Civil Judge, Junior Division, Yeola below Exh. 203 in Regular Civil Suit No.120 of 2012 rejecting the plaintiff's application under Order VI Rule 17 Code of Civil Procedure, 1908 for carrying out amendment in the plaint.

The plaintiff has filed Regular Civil Suit No. 120 of 2012 for partition and separate possession of his 1/16th share from HUF property. The suit was kept for final argument on 31.10.2015. Final argument was heard on 31.10.2015 on behalf of plaintiff as well as defendants. The matter was posted for reply of plaintiff on 18.11.2015. At that time, the plaintiff filed amendment application and same was 1/3

rejected. Hence, the present Writ Petition.

The learned Counsel Mr. Sachin Chandan appearing on behalf of petitioner/plaintiff submits that Trial Court erred in coming to the conclusion that if amendment is allowed, the same will change the nature of the suit. He submits that plaintiff in the plaint in paragraph 1(c) given description of the suit property. In that plaint, it is specifically stated that the same was divided in Plot Nos. 1 to 10. He submits that by way of amendment, the plaintiff wanted to place on record the full description of the suit property including area of each and every plot. He submits that if amendment is allowed, same is not going to change nature of suit and will not going to affect an interest of the defendants. In support of his contentions, he relies on the Judgment of the Apex Court in the matter of Sajjankumar V/s.

Ram Kishan, reported in (2005) 13 Supreme Court Cases 89 and the Judgment of this Court in the matter of Rajbahaddur Jiyaram Yadav v/s. Prakash @ Pappu Jiyaram Yadav & Ors. reported in (2016) 1 AIR Bom R 631. On the basis of these submissions and authorities, the learned Counsel for the plaintiff submits that the impugned order passed by the Trial Court is required to be set aside. I have gone through the copy of plaint as well as application filed by the plaintiff for amendment of plaint. First thing is that before the Trial Court, plaintiff as well as defendants argued the matter finally. The matter was posted for reply of plaintiff on 18.11.2015. At that time, the plaintiff filed an application for amendment of plaint.

property that the same was divided in plot nos. 1 to 10. The plaintiff as well as defendants finally argued the matter and same was placed for reply of the plaintiff. The Authorities cited by the learned Counsel for the Plaintiff in the matter of Sajjan Kumar (supra) and Rajbahaddur Jiyaram Yadav(supra) are not applicable to the facts and circumstances of the present case. In that case, the Supreme Court held that amendment can be allowed by providing proper description of the suit property, even the matter is kept for final hearing. In the case in hand, the description of the suit property was already given by the plaintiff in paragraph 1 of the plaint.

In the above mentioned facts, I do not find any reason to interfere with the well reasoned order passed by the Trial Court. Hence, Writ Petition stands rejected. No order as to costs. (K.K.TATED, J.) 3/3