SYED SALIM SYED MUSTAFA ZHAGIRDAR v. …
Case Details
2025:BHC-AUG:7088 (1) 57wp7378.23 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 57 WRIT PETITION NO. 7378 OF 2023 SYED SALIM SYED MUSTAFA ZHAGIRDAR VERSUS ….Petitioner SYED MOHSIN SYE MUSTAFA ZHAGIRDAR AND OTHERS …..Respondents
Legal Reasoning
Mr. Ram S. Shinde, Advocate for the petitioner Mr. M. S. Chaudhari, Advocate for the respondents CORAM : KISHORE C. SANT, J. DATE : 05th MARCH, 2025 P. C. 1. 2. Heard the learned advocate for the parties. The petitioner-plaintiff has approached this court by filing this petition challenging the order dated 25-04-2023 passed by the learned Court, CJSD, Udgir on an application below Exh.269 in RCS No. 22/2018. The learned Trial Judge by way of impugned order has dismissed the application of the plaintiff seeking amendment to the plaint and to add the subsequent purchaser of some portion of the property from 1 of 6 survey No. 12/A as party defendant. (2) 57wp7378.23 3. The learned advocate for the petitioner submits that he filed a suit for injunction against the respondents. The suit was dismissed. In an appeal by the petitioner the appellate court remanded the suit for fresh trial and directed the trial court to consider the additional evidence laid by the parties. He further submits that when the suit was pending, defendant No. 4 and his wife sold some portion of the land from survey No.12/A to one Deepak Panchal by way of sale deed. He submits that therefore, it was necessary to add the subsequent purchaser as party in the suit. The event has occurred subsequent to remand. The wife of one of the defendants field a suit against defendant No. 4 and his wife on 23-09-2021. Said suit was immediately compromised within three days and compromise came to be recorded 25-09-2021. All these things were behind back of the petitioner. After getting the knowledge of these subsequent events, the petitioner filed an application seeking amendment to the plaint and also for addition of the parties. The parties which 2 of 6 (3) 57wp7378.23 are sought to be added are the persons who have purchased the property by way of sale deed. Some portion was transferred by way of Hibanama. Both the transactions have taken place when the suit was pending. Since these are the events which have taken place subsequent to filing of the suit and were not within the knowledge of the plaintiff, the application ought to have been allowed. The learned trial Judge however, wrongly rejected the application only stating that the amendment is sought after
Decision
the suit was disposed off and when the suit was pending after remand. He relies upon the judgment in the case of Kamlesh Gupta Vs Mangat Rai and another 1 . 4. The learned advocate Mr. Chaudhari, vehemently opposed the petition. He submits that the sale deed executed by the defendant No. 4 and his wife so also Hibanama is in respect of the some other property and is not part of the suit property. The petitioner is prolonging the proceedings of the suit. The petitioner is enjoying the possession of the suit property. Though initially there was an injunction granted because of the non- 1 (2020) 17 SCC 132 3 of 6 (4) 57wp7378.23 fulfillment of the condition of the order subsequently the injunction came to be vacated. He thus, submits from the conduct of the petitioner that the petitioner is interested only only to prolonging to the suit. 5. It is the defendant who though, happens to be owner of the suit property is deprived of the possession. He submits that the learned trial court has rightly rejected the application. There is no substance in the prayer for the amendment and also in the prayer for addition of the parties. 6. After hearing the parties and going through the petition prayers what is seen is that the amendment sought to be made is in respect of the subsequent events. Though the amendment application is filed after remand of the suit, still it is necessary to consider proviso to order VI Rule 17 which clearly makes out exception to the rule that no amendment is allowed after commencement of the trial. The order VI Rule 17 of the Civil Procedure Code, 1908 is reproduced below: 4 of 6 (5) 57wp7378.23 17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 7. Reading to the proviso, this present case needs to be considered. There is no dispute that the transaction took place after remand of suit. There is no question of the plaintiff getting immediate knowledge of the said transaction and also of the compromise which was recorded in the court by defendant No.4. Whether the property is part of the joint family property or not is the question requiring trial. What is material at this stage is not the merit of the amendment but necessity of the amendment. 8. Considering all above factors this court finds that it was necessary for the trial court to allow the application. It 5 of 6 (6) 57wp7378.23 would certainly cause prejudice and would prolong the suit. However, sufficient care can be taken of the interest of the respondents. In view of the same, following order:- ORDER a] The writ petition stands allowed. b] The impugned order 25-04-2023 stands quashed and set aside subject to plaintiff/petitioner pay the cost of Rs.10,000/- to the defendant in the trial court in equal proportion. c] The trial court to decide the suit as early as possible in any case within six months from today. d] No parties shall seek unnecessarily adjournment. If adjournment is sought, this court may impose the cost. VishalK/57wp7378.23 [KISHORE C. SANT, J.] 6 of 6