Writ Petition No. 9337 of 2019 · Bombay High Court
Case Details
1 wp_9337.19.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9337 OF 2019 1. 2. 3. 4. 5. 1. 2. 3. Madambai W/o Shantilal Sanklecha, Age : 63 Years, Occu. : Household, R/o Sanman Lodge, Divan-deodi, Aurangabad, Dist. Aurangabad. Sanjay S/o Shantilal Sanklecha, Age : 49 Years, Occu. : Agri. & Business, R/o Sanman Lodge, Divan-deodi, Aurangabad, Dist. Aurangabad. Sau. Pushpabai W/o Ashok Bhansali, Age : 56 Years, Occu. : Household, R/o Jethlia Towers, Gulmandi, Aurangabad, Dist. Aurangabad. Sau. Kusum W/o Deelip Nahata, Age : 51 Years, Occu. : Household, R/o C/o Dr. Deelip Nahata, Samarthnagar, Aurangabad. Virendra S/o Rajendra Sanklecha, Age : 33 Years, Occu. : Business, R/o Sanman Lodge, Divan-deodi, Aurangabad, Dist. Aurangabad. Versus Chanchalbai w/o Shivchand Surana, Age : 66 Years, Occu. : Household, R/o Jamkhed, Dist. Ahmednagar. Komal d/o Rajendra Sanklecha, Age : 30 Years, Occu. : Household, R/o Shirud, Tq. & Dist. Dhule. Jyoti w/o Rajendra Bothra, Age : 50 Years, Occu. : Household, R/o Shirud, Tq. & Dist. Dhule. .. Petitioners 2 wp_9337.19.odt 4. 5. 6. Sau. Vijaya W/o Anil Chopada, Age : 49 Years, Occu. : Household, R/o Sanman Lodge, Divan-deodi, Aurangabad, Dist. Aurangabad. Sanjay S/o Dattatraya Tade, Age : Major, Occu. : Agril., R/o Vihamandawa, Tq. Paithan, Dist. Aurangabad. Sudhakar S/o Vithalrao Kakde, Age : Major, Occu. : Agril., R/o Vihamandawa, Tq. Paithan, Dist. Aurangabad. .. Respondents
Legal Reasoning
Shri Ruchir Wani, Advocate h/f Shri Anil S. Bajaj, Advocate for the Petitioners. Shri Ashwin V. Hon, Advocate for the Respondent No. 1. Shri P. P. Patani, Advocate h/f Shri P. F. Patni, Advocate for the Respondent Nos. 2 and 3. CORAM : SANDEEP V. MARNE, J. 07TH DECEMBER, 2022. DATE : ORAL JUDGMENT : . Rule. Rule is made returnable forthwith. With the consent of parties taken up for final hearing. 2. By this petition, petitioners challenge order dated 12.06.2019 passed by the 03rd Joint Civil Judge Senior Division, Aurangabad allowing application filed by the plaintiff No. 3 (respondent No. 1) for amendment of the plaint. 3. The suit was initially instituted by plaintiff Nos. 1 and 2 for partition. The defendant No. 2 in the suit filed an application for transposing her as plaintiff No. 3. Application for transposing her as plaintiff No. 3 came to be allowed. That order 3 wp_9337.19.odt has attained finality. 4. While the three plaintiffs were jointly prosecuting the suit for partition, plaintiff Nos. 1 and 2 entered into compromise with defendant Nos. 1, 3 to 7. Plaintiff No. 3 is not signatory to such compromise deed. 5.
Decision
Apprehending that the suit was likely to be disposed of in terms of compromise terms executed between plaintiff Nos. 1 and 2 and defendant Nos. 1, 3 to 7, plaintiff No. 3 moved an application for amendment of the plaint. In her amendment application, she sought complete overhaul of the plaint. She desired deletion of plaintiff Nos. 1 and 2 and transposing them as defendants. She sought deletion of para Nos. 1 to 10 of the plaint and substitution of the same by adding new paragraph Nos. 1A to 1R. She also sought addition of six new prayer clauses AA to FF in the suit. 6. There can be no manner of doubt that the amendment sought to be effected by the plaintiff No. 3 completely changes the nature of the suit. In fact, it is like a fresh suit now been instituted by the plaintiff No. 3 alone. In the unamended plaint, plaintiffs had claimed 1/10th share jointly in the suit properties. Whereas in the amended plaint, plaintiff No. 3 seeks ½ share for herself. 7. The Trial in the suit has admittedly commenced. Despite this the Trial Court has allowed the amendment application filed by the plaintiff No. 3. 4 wp_9337.19.odt 8. In my view, the Trial Court has completely glossed over the fact that amendment is so drastic that it completely alters the nature of the suit. 9. True it is that on account of compromise deed entered into between plaintiff Nos. 1 and 2 and defendant Nos. 1, 3 to 7, the plaintiff No. 3 possibly feels left out and was worried about entire suit being hijacked by plaintiff Nos. 1 and 2. This possibly is the reason why she moved an application for amendment for completely overhauling suit by seeking the transposition of plaintiff Nos. 1 and 2 as defendants. 10. The suit is for partition. The Trial Court is required to determine share of parties to the suit irrespective of whether they are plaintiff or defendants. Even through her unamended plaint, plaintiff No. 3 can pursue her share in the property regardless of compromise terms being executed between plaintiff No. 1 and 2 on one hand and defendant Nos. 1, 3 to 7 on the other hand. Since the entire suit itself cannot be disposed of in terms of compromise deed, the Trial Court would ultimately determine share of parties in the suit for partition. In such circumstances, in my view, amendment application filed by the plaintiff No. 3 attempting to completely overhaul the suit ought to have been rejected. It must be observed here that it is plaintiff No. 3 who was original defendant in the suit and it is on her application that she was transposed as one of the plaintiff. Now she wants to completely take over the suit by becoming a sole plaintiff. There is amendment to the prayer clauses as well. In such circumstances, the application for amendment filed only by the plaintiff No. 3 deserved rejection. I therefore proceed to pass 5 wp_9337.19.odt following order. O R D E R A. Order dated 12.06.2019 passed by the 3rd Joint Civil Judge Senior Division, Aurangabad on application Exhibit 102 in Spl. C. S. No. 350 of 2007 is set aside and application filed by the plaintiff No. 3 at Exhibit 102 stands rejected. B. It is however clarified that the Trial Court shall proceed to decide unamended suit and determine the rights and shares of the parties therein. C. Since the suit is for partition, the compromise deed executed between plaintiff Nos. 1 and 2 on one hand and defendant Nos. 1, 3 to 7 on the other hand will obviously not be binding on the plaintiff No. 3. D. Rule is partly made absolute in above terms. There shall be no order as to costs. [SANDEEP V. MARNE, J.] bsb/Dec. 22