Bombay High Court
Bhimrao Jairam Dongare vs Sanjay Mahavirprasad Jain And Anothers on 23 January, 2017
Author: Z.A. Haq
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4379 OF 2014
Bhimrao Jairam Dongare,
Aged about 55 years,
Occupation - Agriculturist,
R/o Ganpati Nagar, Amravati. .... PETITIONER
VERSUS
1) Sanjay Mahvirprasad Jain,
Aged about 42 years,
Occupation - Agriculturist,
L.Rs. of Respondent No.1.
a) Smt. Urmilar wd/o Sanjay Jain, -(Amended as per
Aged about 38 years, order dt. 21-11-2016)
Occupation - Business,
b) Akshay s/o Sanjay Jain,
Aged about 12 years,
Occupation - Student,
c) Supriya Sanjay Jain,
Aged about 10 years,
Occupation - Student,
All R/o Majri, Mhasla, Tahsil-
Nandgaon Khandeshwar,
District - Amravati.
L.Rs. of R-1(b) & 1(c) are minors
through their guardian L.R. R1(a).
2) Mahavirprasad Totaram Jain,
Aged about 71 years,
Occupation - Agriculturist,
Both R/o Majri, Mhasla, Tahsil-
Nandgaon Khandeshwar, District-
Amravati (Maharashtra) .... RESPONDENTS
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______________________________________________________________
Shri Deoul Pathak, Advocate h/f. Mrs. I.P. Khisti, Advocate for the
petitioner.
None for the respondents.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 23
JANUARY, 2017.
rd
ORAL JUDGMENT :
Heard Shri Deoul Pathak, Advocate holding for Mrs. I.P. Khisti, Advocate for the petitioner/plaintiff.
Though the respondent No.2 and the legal representatives of the respondent No.1 are served with notice with intimation that matter will be disposed at the stage of admission, none appearS for them.
2. Rule. Rule made returnable forthwith.
3. The petitioner/plaintiff has filed this petition challenging the order passed by the trial Court rejecting the application (Exhibit No.94) filed by him under Order VI Rule 17 of the Code of Civil Procedure.
4. By the application (Exhibit No.94), the plaintiff wanted to ::: Uploaded on - 02/02/2017 ::: Downloaded on - 27/08/2017 14:12:41 ::: 3 wp4379.14 amend the plaint to bring on record the factum of passing of decree in Regular Civil Suit No.53/2008 and the effect of it on the claim made in the civil suit filed by the plaintiff. The application is dismissed by the learned Trial Judge on the ground that the proposed amendment is not necessary and that the application seeking permission to amend the plaint is filed after the commencement of trial and therefore, it cannot be permitted in view of the bar created by proviso below Rule 17 of Order VI of the Code of Civil Procedure.
5. After considering the documents filed on the record of the petition, I find that the proposed amendment has some nexus with the claim in the civil suit filed by the plaintiff. The learned Trial Judge has committed an error in examining the merits of the proposed amendment at this stage.
As far as the other ground is concerned, in my view, the bar created by proviso below Rule 17 of Order VI of the Code of Civil Procedure will not come in the way of the plaintiff seeking the amendment. The Regular Civil Suit No.53/2008 is decided by the judgment given on 06-02-2014 and the application (Exhibit No.94) is filed on or about 24-03-2014 i.e. immediately after the judgment and decree is passed in Regular Civil Suit No.53/2008. In these facts, it ::: Uploaded on - 02/02/2017 ::: Downloaded on - 27/08/2017 14:12:41 ::: 4 wp4379.14 cannot be said that the plaintiff has not shown due diligence in seeking the amendment and the bar created by proviso below Rule 17 of Order VI of the Code of Civil Procedure comes in his way.
In view of the above, in my view, the impugned order is unsustainable and is required to be set aside.
6. Hence, the following order :
(i) The impugned order is set aside.
(ii) The application (Exhibit No.94) filed by the plaintiff is
allowed.
Rule made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE adgokar ::: Uploaded on - 02/02/2017 ::: Downloaded on - 27/08/2017 14:12:41 :::