Ashok Bapu Kondodi v. Puna Shravan Patil, L.Rs. Sukhdeo And Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO. 11272 OF 2015 ASHOK BAPU KONDODI

VERSUS

PUNA SHRAVAN PATIL, L.RS. SUKHDEO AND OTHERS ...

Advocate for the Petitioner : Shri A. I. Deshmukh Advocate for Respondent Nos. 1 to 5 : Ms. P. B. Khanderao h/f. Shri V. P. Patil ...

CORAM : RAVINDRA V. GHUGE, J.

DATED : 11th DECEMBER, 2019 ...

PER COURT :

1.

I have considered the submissions of the learned Advocates for the respective sides and have gone through the petition paper book with their assistance. The Petitioner / original plaintif in Regular Civil Suit No. 333/2012 (old RCS No. 469/2001), is aggrieved by the order dated 12/08/2014 passed by the Trial Court, by which, his application Exhibit 95 seeking amendment to the plaint in the light of the written statement, has been rejected.

3.

The Petitioner has actually fled the suit for seeking return of the earnest amount as the agreement to sell was not being implemented by the defendant. Considering that the agreement had no future, the plaintif deemed it appropriate to seek the return of the earnest amount.

4.

The defendant fled his written statement on 11/04/2002 and contended that the defendant is ready and willing to perform the contract. Pursuant to the said pleadings, the plaintif has not immediately moved an application for seeking amendment to the plaint. Same was not done and by Exhibit 95, it was sought on 08/01/2014 that the plaintif may be permitted to amend the plaint and introduce the pleading that the plaintif is also willing and ready to perform the agreement.

5.

It requires no debate that in a matter of specifc performance of contract, the person seeking the enforcement of a contract has to specifcally plead in the plaint that ''he is ready and willing to perform his

part of the contract''. If these pleadings are not set out in the plaint, such a litigant cannot be permitted to introduce such a pleading subsequently and more so after a period of 13 years of the pendency of the suit. The suit is lodged in 2001 and Exhibit 95 has been fled on 08/01/2014.

6.

Keeping the settled position of law in view and the proviso below Rule 17 under Order VI introduced in 2002 to the Code of Civil Procedure, I do not fnd that the impugned order declining leave to amend could be termed as being perverse or erroneous.

7.

In view of the above, this petition, being devoid of merit is, therefore, dismissed.

(RAVINDRA V. GHUGE, J.) shp/-