Namdev Nalwade,Died Through L.R's.1.A Sitabai Baburao Nalwade, Age: 83 Years, Occ: Household & Ors. v. Manohar Singh; MANU/SC/3519/2006 & Ors.

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 5432 OF 20231. Shri. Baburao Namdev Nalwade, Died Through L.R's.1.A Sitabai Baburao Nalwade, Age: 83 Years, Occ: Household. R/o Wangdari, Tq. Shrigonda, Dist Ahmednagar1.B Adika Bhimaji Gawali, Age: 38 Years, Occ: Household. R/o Hatwalan, Tq. Daund Dist. Pune1.C Kalpana Bapusaheb Nalwade, Age: 48 Years, Occ: Household1.D Swapnil Bapusaheb Nalwade, Age: 25 Years, Occ: Service1.E Pooja Bapusaheb Nalwade, Age: 23 Years, Occ: Education, R/O: All Respondent no. 1.C to 1.Ε Swapnaraj Park, Tanhajinagar, Near Darshan Hall, Chinchwad, Pune-332. Zumbar Baburao Nalwade, Age: 38 Years, Occ: Agriculture.3. Vinaayak Baburao Nalwade, Age: 38 Years, Occ: Agriculture. Both Respondent no, 2 and 3, R/o Wangdari, Tq. Shrigonda, Dist: Ahmednagar....PetitionersVERSUS1. Tukaram Keshav Nalwade (deceased)Through his Lr's.1 WP-5432-2023.odt1.A Deubai Tukaram Nalwade, Age: 65 Years, Occ: Household.1.B Krishnabai Balasaheb Khamkar, Age: 45 years, Occ: HouseholdDeceased through LR’s [Amendment carried out as per order dtd. 13.11.2024]1-B-1. Balasaheb Tukaram Khamkar (Husband)Age: 78 years, Occ: AgricultureR/o Anandwadi, Post Ajnuj, Tq. Shrigonda, Dist. Ahmednagar1-B-2. Tukaram Balasaheb Khamkar (Son)Age: 60 years, Occ: AgricultureR/o Anandwadi, Post Ajnuj, Tq. Shrigonda, Dist. Ahmednagar1-B-3. Baisaheb Chakradhar Zende (Daughter)Age: 56 years, Occ: HouseholdR/o Chikli, Post Ajnuj, Tq. Shrigonda, Dist. Ahmednagar1-B-4. Jyotiram Balasaheb Khamkar, Age: 54 years, Occ: Agriculture,R/o Anandwadi, Post Ajnuj, Tq. Shrigonda, Dist. Ahmednagar1-B-5. Motilal Balasaheb KhamkarR/o Anandwadi, Post Ajnuj, Tq. Shrigonda, Dist. Ahmednagar1.C Mahadeo Tukaram Nalwade, Age: 40 Years, Occ: Agriculture.1.D Sudam Tukaram Nalwade, Age: 38 Years, Occ: Agriculture.1.E Godabai yashwant Gaikwad, Age: 42 Years, Occ: Household.1.f Indubai Namdeo Mhaske, Age: 45 Years, Occ: Household.2 WP-5432-2023.odt1.G Shivaji Tukaram Nalwade, Age: 40 years, Occ: Household. Respondents no.1a. to 1g All R/o Anandwadi, Post Ajnooj, Tq. Shrigonda, Dist. Ahmednagar1.H Shahaji Tukaram Nalwade, Deceased Through Ir's,1.H.A Sanjana Shahaji Nalwade, Age: 43 years, occ: Household.1.H.B Nitin Shahaji Nalwade, Age: 28Years, Occ: Education1.H.C Sachin Shahaji Nalwade, Age: 25 years, Occ: Education1.H.D Rani Sachin BhosaleAge: 33 Years, Occ: HouseholdAll Respondent No. 1.H.A to 1.H.DC/o Sachin Balasaheb Bhosale/At post Karkhel Tq. Baramati Dist. Pune.1.I Popat Tukaram NalwadeAge: 42 Years, Occ: AgricultureR/o Anandwadi, Post Ajnooj, Tq. ShrigondaDist. Ahmednagar.2. Bajirao Sonu Galande DeceasedThrough his L.R's.2.AKeru Bajirao GalandeAge: 63 Years, Occ: Agriculture2.B Narayan Bajirao GalandeAge: 59 years, Occ: Agriculture2.C Haribhau Bajirao GalandeAge: 58 Years, Occ: Agriculture2.D Balasaheb Bajirao GalandeAge: 55 years, Occ: Agriculture3 WP-5432-2023.odt2.E Badabai Raghu Kaldate, Age: 55 years, Occ: AgricultureR/o Chincholi Kaldate, Tq. Karjat, Dist. Ahmednagar2.F Adikabai Raosaheb ArdeAge: 50 years, Oce: AgricultureR/o Kamthi, Po. MandavganTq. Shrigonda, Dist. Ahmednagar.2.G Indubai Bajirao Galande, Age: 73 years, Occ: AgricultureRespondent no. 2.A to 2.d and 2GAll R/o Deulgaon, Tq. ShrigondaDist. Ahmednagar.3. Kondabai Sonu galande @Kondabai Jaysing Jangale (deceased)Through Her Lr's3.A Rajendra Jaysing Jangale. Age: 40 Years, Occ: agriculture3.B Ranjana Balu JangaleAge: 43 Years, Occ: HouseholdRespondent no. 3.A and 3.BAll R/o Jangalewadi, Tq. ShrigondaDist. Ahmednagar.4. Tatyasaheb Ragnath BhujbalAge: 59 years, Occ: Agriculture5. Kishor Chandrakant BhujbalAge: 30 years, Occ: AgricultureAll Respondent no 4 and 5 R/o Wangdari, Tq. Shrigonda, Dist. Ahmednagar. … Respondents________________________________________________________Appearance :Mr. S. S. Kulkarni, Advocate for the Petitioners.Mr. A. V. Hon, Advocate for Respondent Nos.4, 5, 1(B) to 1(G), 1(H)(D), 1(I), 3(A), 3(B), 2(A) to 2(G), 1(H)(A), 1(H)(B), 1(H)(C), 1(H)(D),1.B.1, 1.B.3, 1.B.5. ________________________________________________________4 WP-5432-2023.odtCORAM: NEERAJ P. DHOTE, J.RESERVED ON:20th November, 2025PRONOUNCED ON:11th December, 2025FINAL ORDER : 1.Impugned in this Writ Petition under Article 227 of theConstitution of India is the order dated 20/02/2023, passed by theDistrict Judge – 2, Shrigonda below Exhibit – 66, in Regular CivilAppeal (RCA) No.122/2019, rejecting the Application for amendmentin the Plaint.2.Brief facts of the case are as follows :[I]The Petitioners are the Original Plaintiffs. They filedRegular Civil Suit (RCS) No.100/2000 for declaration of ownership ofthe agricultural land Gat No.33 admeasuring 2 Hectare 17 R, situatedat Village Wangdari, Taluka Shrigonda, District Ahmednagar (For short‘the suit property’). They prayed in the Suit that, the Sale Deeds ofcertain portion of the suit property executed by Defendant Nos.1-A to1-H, 2 and 3 in favour of Defendant Nos.4 and 5 on 27/04/2001 and03/05/2001 were illegal and not binding on the Plaintiffs and furtherprayed for perpetual injunction. In 2002, the Petitioners filed theApplication for amendment of the Plaint in respect of the aforesaidSale Deed, which was allowed. The Regular Civil Suit came to bedismissed by order dated 02/09/2013 and the Petitioners preferred theRegular Civil Appeal No.122/2019 before the District Court. The5 WP-5432-2023.odtPetitioners filed the Application below Exhibit – 66 in the said Appealto delete the prayer clause in respect of declaration of ownership andsought amendment for directions to Defendant Nos.4 and 5 to executeSale Deed of property by accepting the consideration under the rightof pre-emption. [II]The said Application below Exhibit – 66 was opposed bythe Respondents on the grounds of delay, change of nature of the Suitand limitation. [III]The Appellate Court, after hearing both the sides, passedthe impugned order. 3.Heard the learned Advocate for the Petitioners and thelearned Advocate for the Respondents. Perused the papers on thefile.4.It is submitted by the learned Advocate for the Petitionersthat, during pendency of the Regular Civil Suit, the Defendants soldsome property to Respondent Nos.4 and 5. In the Appeal, theApplication for amendment of the Suit came to be filed. Theamendment do not change the nature of the Suit. The Court cannotconsider the merit of the pleadings in the amendment. The point oflimitation was not material. The Petitioners are having shares in thesuit property. No prejudice would cause to the Respondents. Thesubsequent Suit, if any, filed by the Petitioners would be hit by Order II6 WP-5432-2023.odtRule 2 of the Code of Civil Procedure, 1908 (hereinafter referred as‘the CPC’). As per Hindu law, the Petitioners are having the right ofpre-emption. The impugned order is not according to the settledposition of law. There was injunction in favour of the Petitioners, which was confirmed by the Hon’ble Apex Court. The amendment beallowed by imposing some costs and the Petition be allowed. Insupport of his contentions, he relied on the following Judgments: (a) Rajesh Kumar Aggarwal and Ors. Vs. K. K. Modi and Ors.; MANU/SC/8043/2006 ;(b) Baldev Singh and Ors. Vs. Manohar Singh and Ors.; MANU/SC/3519/2006 ; 5.It is submitted by the learned Advocate for theRespondents that, the Suit was dismissed after full fledged trial. Theamendment Application was filed in the Appeal and the learnedAppellate Court has rightly rejected the same. Two different reliefsare tried to be inserted by way of the amendment in the nature ofchallenging the Sale Deeds and pre-emption, which cannot gotogether. The proposed amendment changes the nature of the Suit. The Petitioner was having knowledge about the Sale Deeds way backin 2001, when he amended the Plaint in 2002. The proposedamendment ought to have been done at that very point of time whenthe first amendment was made. The provision of Order VI Rule 17 ofthe CPC bars such amendment. The Judgments cited by the learned7 WP-5432-2023.odtAdvocate for the Petitioners are not applicable in the present facts ofthe case. The time barred claims cannot be allowed and the Petitionbe dismissed. In support of his submissions, he relied on thefollowing Judgments:(a) South Konkan Distilleries and Another Vs. Prabhakar Gajanan Naik and Othes; (2008) 14 SCC 632;(b) Ashutosh Chaturvedi Vs. Prano Devi Alias Parani Devi and Others; (2008) 15 SCC 610 ;(c)Revajeetu Builders and Developers Vs.Narayanaswamy and Sons and Others ; (2009) 10 SCC 84 ;6.There is no dispute that, the Application below Exhibit – 66was preferred in the Appeal seeking amendment to the Plaint underOrder VI Rule 17 of the CPC, which reads as under :“17. Amendment of pleadings - The Court may at any stageof the proceedings allow either party to alter or amend hispleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessaryfor the purpose of determining the real questions incontroversy between the parties :Provided that no application for amendment shall beallowed after the trial has commenced, unless the Courtcomes to the conclusion that in spite of due diligence, theparty could not have raised the matter before thecommencement of trial.”8 WP-5432-2023.odt6.1.The above-referred Judgments cited by both thesides are in respect of the principles or the settled legal position inrespect of the amendment of pleadings. Perusal of the impugnedorder shows that, the Appellate Court considered all the aspects orfactors which requires consideration while dealing with the Applicationfor amendment. The impugned order notes that, the Application foramendment was moved after 23 years from filing of the Suit and 10years from filing of the Appeal. It further notes that, the Petitionershad amended the Plaint during the pendency of the Suit in 2002 andinserted the pleadings in respect of the two Sale Deeds executed byDefendant Nos.1 to 3 in favour of Defendant Nos.4 and 5 and soughtdeclaration that, the Sale Deeds were illegal and not binding on him.It further notes that, at that point of time, the Petitioners could havesought the present amendment based on the exercise of right of pre-emption. It further notes that, the proviso of Order VI Rule 17 of theCPC provides that, the Application for amendment shall not beallowed after trial commences unless the Court comes to theconclusion that, in spite of due diligence, the party could not haveraised the matter of amendment before commencement of the trial. Itfurther notes that, the proposed amendment do not disclose anyground to satisfy the Court, what efforts were taken by the Appellant toshow their due diligence despite which they could not file amendmentApplication prior to commencement of the trial of the Suit. The9 WP-5432-2023.odtAppellate Court found the ground raised by the Petitioners in theamendment Application that, they had to rush to the Hon’ble HighCourt and Hon’ble Supreme Court, as not acceptable and records thefinding that, in absence of such ground for satisfaction of the Court toremove the bar as per proviso to Order VI Rule 17 of the CPC, theApplication could not be allowed. It further takes into considerationArticle 97 of the Limitation Act, which provides for limitation of oneyear for seeking the relief based on right of pre-emption and thePetitioners were seeking amendment to insert the relief based on theright of pre-emption after approximately 20 years from expiry of theperiod of limitation and therefore, the amendment could not beallowed. It further notes that, in absence of the amendment in thepleadings and only amendment to insert the relief of directions wouldbe a futile exercise. It further notes that, as the Application was notfiled within limitation, the right accrued to the Respondents will beaffected and cause legal injury to the right accrued to the DefendantNos.4 and 5, if the amendment was allowed.7.There is no dispute in respect of the reliefs sought in thePlaint at the time of its institution. Further, there is no dispute that, during pendency of the Suit, some amendment by adding theDefendant Nos.4 and 5 and seeking relief of cancellation of Sale Deedcame to be made. Thereafter, in the Appeal, the present amendment10 WP-5432-2023.odtApplication seeking relief in the nature of pre-emption is filed. Examining the impugned order, in the light of legal positionenumerated in the above referred Judgments, the same is passedafter taking into consideration all the relevant aspects, which arerequired to be taken into consideration while dealing with theApplication for amendment of pleadings. The observations and thefindings recorded by the learned Appellate Court in the impugnedorder are in consonance with the principles reiterated in the above-referred Judgments. The learned Appellate Court has considered allthe aspects of the Application and rejected the Application. Thefindings and observations in the impugned order are based onmaterial and in consonance with the legal position. The impugnedorder is based on sound reasons and calls for no interference inexercise of the power under Article 227 of the Constitution of India. Hence, the following order:ORDER.The Writ Petition stands dismissed. [NEERAJ P. DHOTE, J.]Sameer/December-202511