Narayan Madhavrao Pole vs Sumanbai Napte

R.M. Savant, J.—With the consent of the parties, made returnable forthwith and heard.

The above petition takes exception to the order dated 1.4.2010 passed by the learned Civil Judge, Junior Division, Patur by which order the application for amendment of the plaint filed by the Petitioner herein came to be rejected.

The Petitioner is the original Plaintiff who has filed Regular Civil Suit for permanent injunction. It is the claim of the Petitioner that he is the owner and in possession of the agricultural field bearing Survey No. 17/3 admeasuring 1H 20R plus 0H.82 R totaling to 2H 2R situated at AndharSangvi, Tq. Patur, Dist. Akola. The Petitioner claims ownership by virtue of the registered sale deed dated 30.12.1976 from one Anandrao Napte.

The Respondent herein has filed his written statement and denied that the Petitioner is the owner of .39R from the suit field. It is the claim of the Respondent that she has purchased .39 R from the suit field from Anandrao Napte. In the said suit, an application for temporary injunction came to be filed by the Petitioner which came to be rejected by the trial Court by order dated 23.10.2008 against which an appeal came to be filed by the Petitioner which also came to be rejected by order dated 7.10.2009. It is thereafter that the application for amendment so as to 3 incorporate paragraph 3(A) came to be filed. It is stated in the said application seeking amendment that through inadvertence and on account of hurry, the averments could not be incorporated in the plaint. As indicated above, by the impugned order dated 1.4.2010 the said application came to be rejected by the trial Court on the ground of delay. The trial Court further held that the Plaintiff was aware that the Defendant is claiming title to the extent of 0.39R. The trial Court also observed that since the averments sought to be introduced involves a law point, the same need not be pleaded at the hearing of the suit.

Having heard the learned Counsel for the parties in my view the above petition is required to be allowed. The amendment sought to be introduced by way of paragraph 3(A) can be said to be in the nature of clarification, in paragraph 3 of the plaint as originally filed, the Plaintiff has averred that the Defendant is claiming to be the purchaser of 0.39R from the suit field and her claim is based on false and fabricated document, which is to her knowledge. Hence, what is sought to be introduced by way of paragraph 3(A) is an amplification of the case in which is stated in paragraph 3. Reading of the said proposed amendment would also indicate that the subjectmatter of the suit as well as the cause of action does not change in any manner. The learned Counsel for the Respondent Shri Gandhi has sought to place reliance on the 4 judgment of a learned single Judge of this Court reported in in the matter of Prakash Ratanlal Kasari v. Bhika Dhage and Anr. 2010 (Suppl) Bom.C.R. 131. In the said case, the learned Judge has observed that if the amendment is allowed it would change the nature of the suit because original suit was for perpetual injunction and by way of amendment Petitioner introduced a new prayer for specific performance which would prejudice the Respondents, it is in the said context that the amendment was refused.

However, in the instant case as mentioned hereinabove the amendment is only by way of amplification of the case of the Plaintiff in paragraph 3 of the plaint and cannot be said in any manner to change the nature of the suit. In that view of the matter the impugned order dated 1.4.2010 is required to be quashed and set aside and resultantly, the application Exh.38 for amendment of the Plaintiff so as to incorporate paragraph 3(A) is allowed. Rule is accordingly made absolute. The Petitioner to pay costs of Rs. 1000/to the Respondent within a period of three weeks from date.