Pradeep Balkrushna Dorge v. Mangal Pandharinath Dorge

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3428 OF 2026 Pradeep Balkrishna Dorge and Ors

...Petitioners

Versus

Mangal Pandharinath Dorge and Ors

...Respondents

Adv Heena Shaikh, for the Petitioners.

CORAM:

N. J. JAMADAR, J.

DATE :

18th MARCH 2026 ORDER:

1.

Heard the learned Counsel for the Petitioners. 2.

This Petition under Article 227 of the Constitution of India assails, the legality, propriety and correctness of an order dated 29th January 2026 passed by the learned Civil Judge, Junior Division, Daund, whereby an Application preferred by the Petitioner No. 6-Plaintiff No.7, ARUN RAMCHANDRA SANKPAL ARUN RAMCHANDRA SANKPAL Date: 2026.03.23 18:22:24 +0530 for amendment in the Plaint under the provisions of Order 6 Rule 17 of the Code of Civil Procedure, 1908 ("the Code"), came to be rejected. 3.

The Petitioners have instituted a Suit for partition and separate possession of their share in the suit properties on the premise that Ganpat Ankush Dorge, who passed away in 1971, was the common ancestor of the Plaintiffs and Defendants and the name of Pandharinath, the son of late Ganpat Dorge and predecessor-in-title of Defendant Nos. 1/5

1 to 11 was mutated to the land bearing Gat No. 525 ("the suit property") in the capacity of the manager of the joint Hindu property and, yet, the Defendant Nos. 1 to 12, refused to partition the suit property.

4.

When the suit came to be posted for final argument, the Petitioner No. 6-Plaintiff No. 7 filed an Application seeking the amendment in the Plaint so as to implead the three persons as partyDefendant Nos. 31, 32 and 33 to the Suit, asserting that the proposed Defendant Nos. 31 to 33 were the children or successor in interest of the children of late Ganpat Dorge, born to his second wife. The Petitioners were not aware of the said fact. It was, therefore, necessary to amend the Plaint so as to implead those persons as party-Defendants and incorporate necessary averments in the Plaint. 5.

By the impugned order, the learned Civil Judge was persuaded to reject the Application. The facts that the Application was made at the fag end of the trial when the Suit was listed for advancing final arguments of the Plaintiff without satisfying the test of due diligence primarily weighed with the learned Civil Judge. It was inter alia noted that an earlier Application to implead the proposed Defendants as parties to the Suit (Exhibit "137") was already rejected by the Civil Court on 15th September 2025 and the said order was not assailed by the Plaintiffs.

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6.

Ms. Heena Shaikh, the learned Counsel for the Petitioners, would submit that, despite the element of delay, since proposed amendment is necessary for the determination of the suit for partition, the trial court ought to have allowed the Application. Reliance was sought to be placed on an order dated 26th February 2024 passed by the Division Bench of this Court in Interim Application (L) No. 1455 of 2024 in Writ Petition No. 626 of 2003.

7.

I find rather difficult to accede to the aforesaid submission. At the outset, it is necessary to note that Ganpat Dorge, the common ancestor, purportedly passed in the year 1971. The proposed Defendants are stated to be the children of deceased Ganpat Dorge born to his second wife.

8.

The proposed Defendants must have been born to late Ganpat Dorge, in any event before 1971/72. The Application for amendment in the suit came to be moved in the month of January 2026. Even the Application to implead them as party-Defendants was filed in the year 2025. The only explanation sought to be offered in the Application was that the proposed Defendants could not be impleaded as partyDefendants to the Suit on account of inadvertence. In effect, the Plaintiffs want the Court to believe that they were unaware of the relationship of the proposed Defendants with late Ganpat Dorge for over 55 years.

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9.

At this stage, the interdict contained in the proviso to Order 6 Rule 17 of the Code deserves to be noted. As the Application for amendment came to be filed when the matter was posted for final argument of the Plaintiffs, after the parties lead evidence in a fullfledged trial, it was incumbent upon the Plaintiffs to satisfy the test of due diligence. Where the trial has commenced, before permitting a party to amend the pleadings, the Court must come to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of the trial. Such satisfaction of the Court is construed to be a jurisdictional fact. In the absence of existence of such jurisdictional fact, the Court cannot permit amendment in the Plaint after the commencement of trial. A useful reference in this context can be made to the decision of the Supreme Court in the case of Vidyabai And Ors Vs Padmalatha and Anr,1 wherein the following observations were made.

"19.

It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint." (2009) 2 SCC 409.

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10.

In the case at hand, the Court finds that, there is no material to satisfy the test of due diligence. A bald assertion that on account of inadvertence, the amendment could not be carried out at an earlier point in time cannot be acceded to, especially having regard to the relationship between the parties.

11.

The learned Civil Judge, thus, committed no error in the exercise of the discretion not to permit the Plaintiffs to carry out the amendment on the verge of the conclusion of the trial.

12.

The Writ Petition, therefore, deserves to be dismissed. 13.

Hence, the following order:

: O R D E R :

Petition stands dismissed.

No costs.

[N. J. JAMADAR, J.] 5/5