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2022 Supreme(Bom) 265
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH
V.G. BISHT, J.
Avinisha Realtors Pvt. Ltd. – Appellant
Versus
The Court of Wards and Collector and Others – Respondents
Civil Application (Caw) No. 914 of 2021, Writ Petition No. 250 of 2021
Decided On : 09-03-2022
Advocate Appeared:
For the Appellants : Mr. S.V. Manohar, Mr. Akshay A. Naik.
For the Respondents: Mr. N.R. Patil, Mr. S.K. Mishra, Mr. V.S. Mishra, Mr. K.N. Shukul.
Point of Law : Principles in respect of amendment is that all amendments ought to be allowed which satisfy the two conditions: (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties.
Headnote:
Constitution of India, 1950 - Article 226 - C P and Berar Court of Wards Act - Power of High Court to issue writs - Writ petition is filed challenging the notice and order issued by respondent No.1, Court of Wards and Collector, Nagpur, with respect to land bearing Survey of Mouza Somalwada, Tahsil and District-Nagpur, claiming that said property belonged to Senior Bhonsla Estate and was under superintendence of the Court of Wards under provisions of C P and Berar Court of Wards Act.
Findings of the Court :
Proposed amendment does not completely and fundamentally changes nature and character of the petition or in other words put up a completely new case, as is sought to be canvassed by counsel for respondent Nos.2 to 9 - It is also to be kept in mind that according to petitioner, documents which have been unearthed by him are almost 50 to 60 years old, it is only after making a thorough search of same he could lay his hands on those documents - Thus, it cannot be said that there was no due diligence on part of petitioner - Not to be missed fact is that matter is still at per-admission stage and yet to be admitted - Judicious evaluation of facts and circumstances, in which amendments are sought warrant granting of amendments which will really subserve ultimate cause of justice without heaping any prejudice on the respondents.
Result : Application is allowed.
JUDGMENT :
V.G. BISHT, J.
1. The present writ petition is filed challenging the notice and order dated 02.07.2020 issued by the respondent No. 1, Court of Wards and Collector, Nagpur, with respect to the land bearing Survey No. 128/1 of Mouza Somalwada, Tahsil and District-Nagpur, claiming that the said property belonged to Senior Bhonsla Estate and was under superintendence of the Court of Wards under the provisions of C.P. and Berar Court of Wards Act.
2. By way of present Civil Application, the petitioner seeks amendment in the original petition by inserting paragraph Nos. 9, 9A to 9H, grounds paragraph No. (vi) to (xxii) and ground Para No. 5 and also seeks deletion of paragraph No. 15.
3. I have gone through the reply filed by respondent No. 1 and respondent Nos. 7 to 9.
4. Mr. S.V. Manhohar, learned Senior Advocate for the applicant, submits that the petitioner at the time of filing of the writ petition could not collect all the relevant documents and information and filed the petition based on the documents received from the respondents in the proceedings initiated by respondent No. 1. However, according to the learned Senior Advocate, after filing of the petition, the petitioner has come across certain important documents and facts, which have material bearing on the outcome of the petition. Proposed amendment is necessary for deciding the real controversy between the parties and the same does not change the nature of the petition. Moreover, the petition is yet to be admitted and thus, no prejudice would be caused to the respondents, if the application for amendment is allowed.
5. Mr. N.R. Patil, learned AGP appearing for respondent No. 1, on the other hand, reiterated the contents of the reply filed on behalf of respondent No. 1 and has denied all the contentions raised in the proposed amendment.
6. Mr. S.K. Mishra, learned Senior Advocate, appearing for respondent Nos. 2 to 6 on the other hand, has also opposed the application by contending that the reason given by the petitioner in preferring the amendment application are not genuine and are absolutely baseless. The documents now sought to be placed on record, along with the amendment application were within the knowledge of the petitioner and has been filed as an after thought to circumvent the contents of the preliminary reply filed by the respondents. Learned Senior Advocate lastly submits that the present amendment substantively changes the pleadings and radically changes the original case of the petitioner, there being no merit in the application, the same deserves to be dismissed with costs, argued learned counsel.
7. Learned counsel for respondent Nos. 7 to 9 have supported the submissions advanced by the learned AGP appearing for respondent No. 1 and learned counsel appearing for respondent Nos. 2 to 6.
8. The principles in respect of amendment is that all amendments ought to be allowed which satisfy the two conditions:
(a) not working injustice to the other side.
(b) of being necessary for the purpose of determining the real question in controversy between the parties.
9. In the instant case, I have already pointed out at the very beginning that the present writ petition impugns the notice and order dated 02.07.2020 issued by respondent No. 1 and if the pleadings and documents now sought to be introduced are looked into carefully, the same is nothing but an elaboration and expansion of the all material facts which are duly pleaded at the time of filing of the writ petition. The proposed amendment is nothing but an aid to the pleadings which is very much forming part and parcel of the writ petition.
10. Although the learned AGP for respondent No. 1 denies the contention raised in the proposed amendment, but I may remind that Court should not go into the correctness or falsity of the case in amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment.
11. In my view, the p
