Sarangi Pravin Mahajan v. Prakash Vyankatesh Mahajan & Ors.

….. Mr. Pathan Sartaj Khan H., Advocate for the Petitioner. Mr. S. S. Thombre, Advocate for Respondent No. 1. Mr. S. V. Adwant, Advocate for Respondent No. 3. PER COURT : CORAM : R. M. JOSHI, J. DATE : 21st APRIL, 2025.

This petition takes exception to the order dated

25.01.2022, passed by the Trial Court in Regular Civil Suit No. 231/2018 rejecting the application Exhibit 110 filed under Order 6 Rule 17 of Code of Civil Procedure seeking amendment to the plaint.

Petitioner is a Plaintiff. Suit came to be filed against Defendants with following prayers :- v½ d`ik d#u vtZ eatwj dj.;kr ;kok o ekSts mLekukckn ;sFkhy tehu losZ ua- 220@1 e/khy {ks= 29 vkj T;kpk vkdkj 2 #- 57 iS- vlwu P;k iSdh 26@06@2013 P;k okV.khi=kizek.ks o#Mk jksM o O;adVs’k egktu dkWyst ;kl nksu rqdM;krhy prqZ%flek varxZr tehuhps gn~ncka/k ?kkywu feG.ksckcr- iwosZl & tehu xV 220 e/khy ea=h ;kaph tehu if’pesl - 2 - wp4581.22.odt izdk’k egktu ;kaP;k fgLL;kps {ks=] nf{k.ksl losZ ua- 220 iSdh feyhan ikVhy ;kaps {ks=] mRrjsl losZ ua- 232 iSdhps {ks= rlsp ekSts mLekukckn e/khy losZ ua- 220 iSdh {ks= 29 vkj ts nksu rqdM;kr foHkkxys vkgs T;kP;kiSdh 15 xqaBs T;kph prq%flek iwosZl&js[kk egktu ;kaP;k fg’;kps {ks=] if’pesl & o#Mk jksM] nf{k.ksl & izdk’k egktu ;kaps {ks=] mRrjsl & 232 iSdhps {ks= lnjhy prq%flesP;k vkrhy nkok feGdrhps mLekukckn T.I.L.R. ;kaP;k dk; kZy;kekQZr cka/k gn~nh (Demarcation of boundaries) fuf’pr d#u ns.;kpk vkns’k Ogkok- c½ nkO;kpk [kpZ oknhl izfroknhdMwu nsofo.;kr ;kok-

Defendants filed written statement, issues were framed and both sides led evidence. After conclusion of evidence, the matter was kept for final hearing. It is at this stage, present application Exhibit 110 came to be moved for amendment to the plaint. The amendment sought to the plaint is to the prayer clause that instead of partition deed dated 26.06.2013, it should be read as 23.01.2018. This application came to be rejected by the Trial Court with observations that the application has been filed after commencement of trial and due diligence has not been shown. It is further observed that permitting amendment would change nature of suit and the cause of action for filing the suit. - 3 - wp4581.22.odt

Learned counsel for Petitioner submits that the Petitioner has entered into compromise with Respondent No. 1. On merit of the impugned order, it is his submission that in the plaint there is specific averment made with regard to the settlement between the parties on 23.01.2018. Thus, it is his case that no case is sought to be made out by the Plaintiff.

Learned counsel for Respondent No. 3 supports the impugned order. He opposes to acceptance of compromise deed between Petitioner and Respondent No. 1. Learned counsel for Respondent No. 1 supports the Petitioner.

As far as compromise compromise between Petitioner and Respondent No. 1 is concerned, this Court, while entertaining challenge to the Order passed below Exhibit 110 cannot consider the correctness or otherwise of the said compromise. The compromise is simply taken on record. It is open for the parties to seek appropriate order from the Trial Court in this regard.

Coming to the merit of the petition, there is no dispute about the fact that application for amendment came to be filed at the - 4 - wp4581.22.odt fag end of the trial more particularly when evidence of both sides is complete. Proviso to Order 6 Rule 17 mandates showing of due diligence by the party to seek amendment to the pleadings after commencement of trial. Perusal of application Exhibit 110 does not indicate any due diligence. It is claimed that the previous advocate appearing on behalf of the Plaintiff unfortunately died during Covid 19 Pandemic. Except for this reason, there is no justification given for not amending the plaint at the time before commencement of trial.