The Appellate Court may keep an amendment application in abeyance pending appeal to ensure substantive rights are not jeopardized, allowing for a comprehensive decision post-hearing.

JUDGMENT :

1. Heard learned Counsel for petitioner and learned Counsel for respondents.

2. Present petition is filed being aggrieved by the order dated 01.08.2024 passed below Exh. 38 in Regular Civil Appeal No. 23/2023 by learned District Judge-2, Bhandara, on application for amendment in pleading kept in abeyance with a direction to decide the same finally with appeal.

3. It is the case of the plaintiffs that the father and mother of plaintiff purchase the suit land from father of defendant No.1 and one Gendu Kapgate by registered sale deed and after purchase mutation was effected. After demise of father, plaintiff became the owner of suit property and are in possession of the suit property. In plaint, agricultural land Gat Nos.190/2, 190/3, 190/4, 190/5, 190/6, 190/8, 191, 192/1, are referred as 'suit property.’ Defendants in collusion with Tahsildar effected false mutation, it was, aside by Sub-Divisional Officer. Defendants came on suit property and try to disposes the plaintiff. Hence, plaintiff filed suit for perpetual injunction.

4. Defendants filed written statement along with counter claim. According to the defendants, previously suit property was numbered as Gat No.159/1, 159/2, and 375, owned by Ramaji. It was joint family property. Only 3 acre land was sold however, mutation effected on entire suit property. It is submitted that Tulshiram and Shriram sold 3 acre land to Patiram, Maroti and Baliram under the influence of liquor, taking undue advantage of the same bogus sale deed was executed. Plaintiff tried to disturb possession therefore, filed counter claim.

5. Being aggrieved by the judgment and decree dated 29.07.2017 passed in Regular Civil Suit No.32/2010, plaintiff filed an appeal before the learned District Judge. During pendency of appeal, plaintiff applied for amendment application Exh. 38. By amendment application, plaintiff want to brought on record, four boundaries of suit property along with plaint map, order passed by Revenue Authority and declaration that plaintiff is the owner of suit property and consequential amendment related to Court fee. The learned first Appellate Court heard amendment application and passed order dated 01.08.2024 directing to keep application in abeyance and the same will be decided finally with appeal. The said order is the subject matter of challenge in the present petition.

6. Learned Counsel for the petitioner contended that learned first Appellate Court ought to have appreciated that the amendment filed by the plaintiff was to explain four boundaries, to bring on record, events occurred subsequent to filing of suit and to remove objections regarding non-seeking of relief of declaration. It is further contended that the learned first Appellate Court erred in considering provisions of Order 41 Rule 23 and 23A of the Code of Civil Procedure while deciding amendment application. It is submitted that learned first Appellate Court has erred in considering the settle principles regarding amendment in pleadings as contemplated under the provisions of Order 6 Rule 17 of the Code of Civil Procedure. Hence prayed for the interference by this court in the impugned order.

7. Learned Counsel for petitioner relied on following citations:

1) M.A. Ahamedkutty Vs. Sub Judge and others 1989 SCC OnLine Ker 109

2) Hasanate Taheriyyah Fidayyiah and anr. Vs. Mahesh Kishor Saran and anr. 2014 (5) Bom.C.R. 231

3) Dinesh Goyal @ Pappu Vs. Suman Agrawal (Bindal) and others 2014 DGLS (SC) 939

4) Ashok Kumar Dureja Vs. Rajendra Kumar Jain thr. LR’s 2017 (4) M.P.L.J.

5) Khemchand Mulchand Vs. Government of Madhya Pradesh, Bhopal and others 1968 Law Suit (MP) 115

8. Learned Counsel for the Respondent supported the order passed by the learned lower appellate court and submitted that this is not the stage for filling amendment application, the lis is pending since long and at this stage, the application is filed with a view to prolong the matter. This fact is rightly appreciated by the learned lower appellate cour