IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. OF 2021
DIST: PUNE
XXX
Age -42 yrs, Occ : agri
R/Anthurne, Tal: Indapur,
Dist : Pune ........ Petitioner
VERSUS
1) XXX
Age-70 yrs, Occ: Agri
R/Anthuurne, Tal: Indapur
Dist : Pune ….RESPONDENTS
INDEX
Sr. Exhibit Particulars Page No.
No.
1 Synopsis.
2 A Copy of the Plaint in Special Civil
suit No .XX
3 B Copy of the Written Statements filed
by the Defendants
4 C Copy of the Application at Exh XX
for amendment of plaint.
5 D Copy of the reply to the Application for
amendment of Plaint
6 E Copy of the Order below XX dated 00th
MARCH, 2000 passed by the learned
trial Court
7 F Copy of the Review Application filed by
the Petitioner
8 G copy of the reply to the Review
Application
9 H copy of Order dated 00/00/00 passed
below Exh ABC.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. OF 2021
DIST: PUNE
XXX
Age -42 yrs, Occ : agri
R/Anthurne, Tal: Indapur,
Dist : Pune ........ Petitioner
VERSUS
1) XXX
Age-70 yrs, Occ: Agri
R/Anthuurne, Tal: Indapur
Dist : Pune
2) ABC
Age-42 yrs, Occ: Agri
R/Anthuurne, Tal: Indapur
Dist : Pune ….RESPONDENTS
SYNOPSIS
Challenge in Brief
Petitioner is approaching Hon’ble court to quash and set aside the
impugned Order dated 00th March, 2000 passed below EXH
00and Order dated 00/3/2000 passed below Exh 00passed by
the learned Civil Judge, Senior Division, and Baramati in Spl.
Civil Suit No. 00 of 0000. Petitioner want to amendment in
plaint which is rejected by learned trial Court. Petitioner stated
that amendment is not changing the original character of the suit
and any deviation in subject matter, only correction of typing
mistake the wrong description of suit property which is
permissible under the provisions of Order VI Rule 17 of Civil
Procedure Code, 1908, only it is not within time rejecting
application will prejudice is going to cause to petitioner and
irreparable loss which could not be compensated by money.
Petitioners further submit that he can easily succeed on merit, if
the prayed reliefs are granted. Petitioner is also seeking for
interim reliefs, by stay the further proceedings pending before the
learned Civil Judge, Senior Division, and Baramati in the Spl.
Civil Suit No. 000 of 0000 till this writ petition is heard and
disposal. Therefore Petition and prayed reliefs to be granted.
LIST OF DATES
Sr. No Date Particulars
1. 22/9/2012 Plaintiff had issued a legal notice to the
defendants demanding partition of the
properties
7/10/2012 Notice replied to by the defendants
2.
Suit is filed by the plaintiff in special
Civil suit No .00/2000
Written Statements filed by the
3. 01/02/2013
Defendants
Plaintiffs approached the learned trial
4.
Court for incorporating an amendment
to the Plaint
Application at Exh.00 was rejected by
4. 29/03/2019
learned trial Court by passing the Order
Plaintiffs approached the learned trial
4.
Court for Review application
Review application was rejected by
4. 23/3/2021
learned trial Court by passing the Order
Writ petition filed before Hon’ble High
4.
court
POINTS TO BE URGED
1. Petitioner seeking this Hon’ble court issue a writ of certiorari or
writ in the nature of certiorari or any other appropriate writ, order
or direction, be pleased to quash and set aside the Order dated
00th March, 2000 passed below EXH 00and Order dated
00/3/2000 passed below Exh 00passed by the learned Civil
Judge, Senior Division, Baramati in Spl. Civil Suit No. 00 of 2000.
2. Petitioner is also seeking for interim reliefs, by stay the further
proceedings pending before the learned Civil Judge, Senior
Division, and Baramati in the Spl. Civil Suit No. 00 of 2000 till
this writ petition is heard and disposal.
ACTS REFEERRED:
1) Civil Procedure Code, 1908
2) Limitation Act 1963
3) Constitution of India
CASE LAWS TO BE CITIED:
AT THE TIME OF HEARING
DATE ADV. OF PETITIONER
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. OF 2021
DIST: PUNE
IN THE MATTER OF ARTICL227
OF CONSTITIUTION OF INDIA
AND
IN THE MATTER OF PROVISIONS
OF ORDER 6 RULE 17 OF THE
CODE OF CIVIL PROCEDURE, 1908
AND
IN THE MATTER OF Order dated
29th March, 2019 passed below EXH
00and Order dated 00/3/2000
passed below Exh 00passsed by the
learned Civil Judge, Senior Division,
Baramati in Spl. Civil Suit No. 00 of
2000; ,
ABC
Age -42 yrs, Occ : agri
R/Anthurne, Tal: Indapur
, Dist : Pune
........ Petitioner
VERSUS
2) XXX
Age-70 yrs, Occ: Agri
R/Anthuurne, Tal: Indapur
Dist : Pune
3) XXX
Age-42 yrs, Occ: Agri
R/Anthuurne, Tal: Indapur
Dist : Pune
….RESPONDENTS
TO,
THE HON’BLE CHIEF JUSTICE AND OTHER COMPANION
JUDGES OF THIS HONORABLE HIGH COURT OF
JUDICATURE AT BOMBAY
HUMBLE PETITION OF THE
PETITIONER ABOVENAMED
MOST RESPECTFULLY SHEWETH:
The Petitioner above named wish to state and submit as under
1) The Petitioner happens to be the original Plaintiff in the Special
Civil suit No .00/2000 filed by the Petitioner against the
Respondents herein above for seeking reliefs of partition and
separate possession in respect of the suit property before the
Learned Civil Judge Senior Division, Baramati Hereto annexed and
marked as EXH A is the copy of the Plaint in Special Civil suit
No .00/2000.
2) The Petitioner states that the Suit is filed by the plaintiff on the
premise that the suit properties are the joint family properties of
the plaintiff and the defendants, however as a part of
understanding amongst the family, some properties are in the
name of the plaintiff while other properties are in the name of the
defendants but the fact remains that till date there is no partition,
whatsoever in respect of the suit properties.
3) The Petitioner states in furtherance of and connection to the above
stated circumstances that the Plaintiff had issued a legal notice
22/9/2012 to the defendants demanding partition of the suit
properties which was replied to by the defendants in the month of
October. Thereafter, the defendants created obstruction to the
possession of the plaintiff in respect of the suit properties on
7/10/2012 and hence the plaintiff was constrained to prefer the
instant suit against the defendants i.e. the Respondents herein
above seeking the relief of partition and separate possession.
4) The Petitioner states in furtherance of the above that the
Defendants i.e. Respondents herein appeared in the suit and
resisted it by virtue of filing the written statement on 5th January,
2012. The aforementioned written statement refuted all the
allegations contended in the suit. Hereto annexed and marked as
Exhibit B is the copy of the Written Statements filed by the
Defendants.
5) The Petitioner states in furtherance of the above stated
circumstances that the trial has not yet commenced in the instant
Suit before the Learned Trial Court.
6) The Petitioner states in furtherance and in connection to the above
that the Plaintiffs approached the learned trial Court by virtue of
filing an Application below EXH 00under the provisions of Order
VI Rule 17 of Civil Procedure Code, 1908, for the purpose of
incorporating an amendment to the Plaint. The amendment
application pleaded that that inadvertently and by typing mistake
the wrong description of suit property has been inserted in the
plaint. Moreover, during the pendency of the suit the plaintiff and
defendants started the dairy business out of the income of joint
family properties and also purchased new vehicle out that income
so now the plaintiff constrained to insert the contention as to
alleged dairy business as well as new vehicle as purchased in the
present suit as disputed property. Due to alleged amendment no
any prejudice would be caused to the defendants and after all it is
necessary to resolve the controversy on merit. Hence, the
application at EXH 00was filed for amendment of the plaint.
Hereto annexed and marked as EXH C is the copy of the
Application at EXH 00for amendment of plaint.
7) The Petitioner further states that the above mentioned Application
at Exh.00 was resisted by the defendants by virtue of filing a reply
at Exh 00. The reply stated that the Application cannot be
entertained as the proposed amendment is barred by limitation as
it is not within time. Hereto annexed and marked as Exhibit D is
the copy of the reply to the Application for amendment of Plaint.
8) The Petitioner states in furtherance to the above that the learned
trial Court was pleased to hear the parties on Application at
Exh.00. The learned trial Court passed an Order dated 00th
March, 2000 by virtue of which the Application at Exh.00 was
rejected. The learned trial Court assigned a reason that the
amendment is not within limitation and relied upon a Judgment of
Harinarayan G Bajaj Vs Vijay Agarwal & Ors 2012 (4) ALL MR
628. Hereto annexed and marked as Exhibit E is the copy of the
Order below Exh.00 dated 00th March, 2000 passed by the
learned trial Court.
9) The Petitioner states in furtherance of the above that the Plaintiff
had filed an application as per section 114 of Civil Procedure Code
for review of the order passed below Exh.00. The contentions
raised in the Review application were that the Plaintiff had filed
application Exh.00 as per Order 6 Rule 17 of civil procedure code
and on 29.03.2019 court had rejected the aforesaid application.
The aforementioned amendment application was rejected as per
citation Harinarayan G. Bajaj and another Vs Vijay Agarwal and
other 2012(4) ALL M.R. 628 and Article 137 of limitation Act.
Proposed amendment is regarding the facts which took place after
institution of suit as well as regarding typographical mistake. The
Hon’ble Bombay high court has observed in case of Vijay Agarwal
and others Vs Harinarayan G. Bajaj and others 2013(5) ALL M.R
664,2013 (4)Mh.L.J 298 that Article 137 of limitation Act is not
applicable to the application filed under Order 6 Rule 17 of C.P.C
and the Trial Court had erroneously relied upon a Judgment which
was actually overruled. Hereto annexed and marked as EXH F is
the copy of the Review Application filed by the Petitioner.
10) The Petitioner states that the defendants has filed say to the
Review application at Exh.00. The defendants contended that the
Suit is filed for partition of suit properties in October 2012.
Defendants had filed written statement on 01.02.2013, and thereby
raised objections regarding suit properties. After 6 years. i.e in the
month of February 2019, the plaintiff has filed amendment
application Ehx.00 on 00.03.0000 the court has dismissed
amendment application on merit. Hence, the defendants resisted
the Review Application. Hereto annexed and marked as EXH G is
the copy of the reply to the Review Application.
11)The Petitioner states further that the Learned Trial Court heard
both the plaintiffs and the defendants in respect of the Review
Application at Exh 00. The Learned Trial Court held that the other
reasons mentioned in the Order below EXH 00regarding rejection
of application Exh.00 in para No.5 of said order have remained
unchallenged except the reason about limitation mentioned by the
Court justifying the order below Exh.00. Hence, this application
does not deserve to be allowed and accordingly the Learned Trial
Court rejected the Review Application by Order dated 00/3/0000.
Hereto annexed and marked as EXH H is the copy of Order dated
00/3/2000 passed below Exh 00.
12) In view of the above Order the Petitioners invokes the Writ
Jurisdiction of this Hon’ble Court on the following amongst other
grounds which are without prejudice to each other.
GROUNDS
A The Orders impugned are ex-facie bad in law and
passed without any application of mind as there is no
consideration of the factual matrix involved in the
matter.
B The impugned Order is against the basic tenets of the
provisions enshrined under Order VI Rule 7 of CPC
which allows the Civil Courts for allowing amendments
before the commencement of trial.
C The Order passed in Review Application has not
reviewed and set aside the earlier despite holding that
the Court had erroneously relied upon a Judgment
which was overruled.
D The Order impugned is passed without considering the
factual matrix that the amendments sought were
regarding typographical errors in description of suit
properties.
E The impugned Order erroneously renders a finding that
the amendment application is not supported by any
details furnished on the record.
F The Order doesn’t consider that the amendment is not
changing the original character of the Suit which is
permissible in the light of laws settled by the Hon’ble
Apex Court.
13) The Petitioners further submit that the Petitioners have good
case on merit and they are sure to succeed in the present Petition.
The Balance of Convenience is also in favour of Petitioners, if the
reliefs as prayed for are not granted the Petitioners will suffer
heavy and irreparable loss which could not be compensated by
money. On the contrary no loss or prejudice is going to cause to the
Respondents if the reliefs as prayed for are granted.
14) The Petitioners crave leave to add, alter, amend, delete,
substitute any of the aforesaid paragraphs if necessary.
15) The Respondents are amenable to writ jurisdiction of this
Honourable Court. The cause of action has arisen within the
jurisdiction of this Honourable Court. Therefore, this Honourable
Court has jurisdiction to try, entertain and dispose of the present
Writ Petition.
16) The Petitioners have not received any Notice of Caveat from
the Respondents till the date of filing of this Writ Petition.
17) The Petitioners have affixed a Fixed Court Fees of Rs.
/- on this Writ Petition.
18) The Petitioners have no other efficacious, speedy, alternate,
legal remedy but to approach this Honourable Court by way of
present Writ Petition.
19) The Petitioner has not filed any other Petition / Application
or Appeal either in this Honourable Court or Special Leave Petition
in the Honourable Supreme Court of India for the same or similar
reliefs.
20) The Petitioner, therefore, prays that –
A that this Hon’ble Court be pleased to issue a Writ of
certiorari or writ in the nature of certiorari or any other
appropriate writ, order or direction, be pleased to
quash and set aside the Order dated 00 th March, 00
passed below EXH 00 and Order dated 00/3/2000
passed below Exh 00passed by the learned Civil Judge,
Senior Division, Baramati in Spl. Civil Suit No. 00 of
2000;
B pending hearing and final disposal of the present writ
petition, this Hon’ble Court be pleased to stay the
further proceedings pending before the learned Civil
Judge, Senior Division, Baramati in the Spl. Civil Suit
No. 00 of 2000 kindly be stayed;
C ad – interim reliefs in terms of prayer clause (b) above
be granted;
D cost of the Petition be granted to the Petitioner;
E such other and further reliefs be granted as the nature
and circumstances of the case may be require;
AND FOR THIS ACT OF KINDNESS AND JUSTICE THE
PETITIONER AS IN DUTY BOUND AND SHALL EVER
PRAY.
MUMBAI
Date :
Advocate for the Petitioners.
VERIFICATION
I, ABC , age : years, residing at Village Anthurne,
Taluka Indapur, District – Pune, the Petitioner do hereby
state on solemn affirmation that what is stated in Paragraph
Nos. 1 to..... are true and correct to my own knowledge and
belief and the contents of the last paragraph no. is my
humble prayers, which also I believe to be true.
Solemnly affirmed at Baramati )
This day of October , 0000, ) Petitioner
Explained & Interpreted by me Before me,
Advocate for the Petitioner.
