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Judgment
. Despite service of notice for admission of the Writ Petition, none appears for the respondent. This Court issued notice for final disposal of the Writ Petition vide order dated 29.04.2025. The record reveals that notice of final hearing issued to the sole respondent is served as per bailiff report. Today, when the matter is taken up, none appears for respondent. Hence, the matter is taken up for final disposal.
Rule. Rule made returnable forthwith.
Heard the Writ Petition for final disposal as indicated in the last order.
The simplicitor suit for perpetual injunction was filed by the plaintiff/present respondent against the present petitioners in respect of the suit property. The sum and substance of the suit was that the plaintiff purchased the suit property vide registered sale deed from present petitioners/defendants in the year 2004. Accordingly, the plaintiff was cultivating the suit land. However, cause of action arose when the defendants obstructed the peaceful possession of the plaintiff over the suit property and hence, suit came to be filed.
In the suit, the petitioners/defendants caused their appearance and defended the suit by filing written statement. Additionally, a counter claim also came to be filed contending that the sale deed on which reliance is placed by the plaintiff was a conditional sale deed and not an absolute sale deed. After filing of the counter claim, the plaintiff filed an application below Exhibit 34 seeking amendment to the pleadings in the suit under Order VI, Rule 17 of the Civil Procedure Code.
By virtue of the amendment, a prayer was sought for a declaration that the questioned sale deed is an absolute sale deed. Secondly, in view of the counter claim and realizing that the possession had been taken by the defendants, a further relief of mandatory injunction was sought. The defendants opposed the application. However, vide the impugned order dated 24.01.2024, learned 3rd Joint Civil Judge, Senior Division, Dhule pleased to allow the application.
Mr. D. S. Patil, learned Advocate for the petitioners submits that in the instant case, instead of filing written statement to the counter claim, the plaintiff has taken recourse to Order VI, Rule 17 of the Civil Procedure Code which may not be permissible. He would submit that the amendment would straightway change the nature of the suit. Abundently, it is clear that the amendment is an afterthought act of the plaintiff which tries to frustrate the defence as also the counter claim filed by the defendant. Contending that the application at Exhibit-34 crosses the permissibility under Order VI, Rule 17 of the Civil Procedure Code, Mr. D. S. Patil prays to allow the Writ Petition and to set aside the impugned order passed on Exhibit-34.
I have cautiously heard Mr. D. S. Patil, learned Advocate for the petitioners. The suit was for simplicitor injunction. As rightly observed by the Trial Court, the controversy revolves around the sale deed dated 09.02.2004 executed by the vendor in favour of the plaintiff. The vendor is father of petitioner no.1 and husband of petitioner no.2. The sale deed is a registered instrument. To counter this theory, it is stated in the counter claim that it was a conditional sale deed, but not an absolute sale deed. In view of this, material controversy arises as to the nature of the transaction between the vendor and the plaintiff.
In the counter claim, the defendants averred that they have already taken possession of the suit property. In view of this, the Trial Court has rightly observed that the amendment has become necessary in view of the pleadings raised by the defendants in the counter claim. Obviously, the parties are at liberty and under responsibility to prove their cases independently by adducing evidence in support of their respective claims. I do not find any infirmity or the illegality in the view expressed by the Trial Court. In view of this, no case is made out for interference under Order 227 of the Constitution of India. Writ Petition fails.
Rules stands discharged.
The Trial Court is requested to conclude the suit proceedings within a period of twelve months from today.
Parties are put to notice that they shall not unnecessarily adjourn the suit on any count.