Bombay High CourtWP/5616/2016disposed offdismissed for default

Keshav Kondiba Bharade v. Vilas Yadavrao Bharade And Others

2019-02-26Hon'Ble Shri Justice Ravindra V. Ghuge2 pages

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO.5616 OF 2016 KESHAV KONDIBA BHARADE

VERSUS

VILAS YADAVRAO BHARADE AND OTHERS ...

Advocate for the Petitioner : Shri Kalani Pravin N. Advocate for Respondent 1 : Shri Latange V.P. ...

CORAM: RAVINDRA V. GHUGE, J.

DATE :- 26th February, 2019 Per Court:

I have heard the learned Advocates for the respective sides. None has appeared on behalf of Respondent Nos.2 and 3 despite service of court notice.

I have considered the impugned order in the light of the request of the Petitioner/ Plaintiff seeking amendment to the plaint. There is no dispute that the suit was filed by the Plaintiff seeking an injunction against the Defendants that they should not commence the construction on the portion mentioned in the suit property. Now it is the case of the Plaintiff that during the pendency of the suit, the Defendants have erected some construction. He sought an amendment to introduce a prayer that the said construction be demolished if the suit is allowed.

*2* 916wp5616o16 The Trial Court has considered the application Exhibit 35 filed by the Plaintiff and has rightly concluded that if the prayer for removal of construction is to be incorporated, the Plaintiff must at least mention the dimensions of the construction and must at least make an averment that the said construction is a result of an encroachment. In the absence of such averment, there would be no purpose in permitting such amendment as the proposed prayer would be vague and ambiguous and would lead to further complications if the said prayer is eventually allowed by the Trial Court.

At this juncture, the learned Advocate for the Petitioner concedes that proper pleadings are not set out in Exhibit 35. He would prefer a fresh application and put forth all details therein. The learned Advocate for the Respondents submits that all his objections to the said application may be kept open. In view of the above, this Writ Petition is disposed of. In the event, the Petitioner/ Plaintiff prefers an application under Order 6 Rule 17 of the Code of Civil Procedure, the Trial Court would consider the same on it's own merits and after considering all objections of the Defendants.

kps (RAVINDRA V. GHUGE, J.)