IMPORTANT POINT
Amendment of plaint – Any amendment which changes nature of suit is required to be declined.

JUDGMENT

By this petition, petitioner has challenged the order dated 30.08.2021 passed by 2nd Jt. Civil Judge Senior Division, Nanded below Exh.118 in Special Civil Suit No.27 of 2020 allowing application filed by respondent nos.1 and 2 - original plaintiffs for amendment of the plaint under Order-VI, Rule-17 of the Code of Civil Procedure (hereinafter referred to as the ‘CPC’).

2. Plaintiff nos.1 and 2 are real brothers of defendant no.1. It is the case of plaintiffs that while obtaining lease in respect of the suit property by their father, defendant no.1 (plaintiffs’ brother) was minor and out of pure love and affection, their father added his name in the lease agreement. After their father passed away, series of litigation took place between defendant no.1 and defendant nos.5 to 11 over the suit property. Initially defendant nos.5 to 11 decided to sell the suit property. Plaintiffs alleged that defendants ought to have purchased the suit property jointly in the name of two plaintiffs and defendant no.1 as the original lease deed was obtained through funds of their father. However the sale-deeds in respect of the suit land were admittedly executed in favour of defendant no.1 alone on 16.09.2017 (by defendant nos.5 to 11) and 09.11.2017 (by defendant no.12). This has led to filing of Special Civil Suit No.27 of 2020 by two plaintiffs against their brother (defendant no.1), his children (defendant nos.2 to 4) as well as defendant nos.5 to 11. In the unamended plaint, plaintiffs prayed for 1/3rd share each in the suit property as well as recovery thereof. They also sought declaration that the sale-deeds dated 16.09.2017 and 09.11.2017 are illegal and not binding on them. They also sought injunction against defendant nos.5 to 12 from alienating suit properties. They also sought damages of Rs.Five Crores against defendant nos.5 to 12.

3. Before the trial of the suit would commence, plaintiffs filed application for amendment of the plaint on 23.02.2021. By way of amendment, plaintiffs sought to completely overhaul the prayers in the suit by deleting most of the original prayers and substituted the same by the following prayers.

“1. Suit of the plaintiff may kindly be decreed in favour of plaintiff no.1 and 2 and against the defendant no.1 to 11 for declaration that the plaintiffs are entitle for rights of pre-emption in suit property and also entitle a decree for pre-emption against the defendant calling upon defendant no.5 to 11 to execute a registered sale deed in favour of the plaintiffs on payment of consideration amount in suit property bearing CTS No.15929 Mun. No.2-10-84 (new) admeasuring South – North 22.83 mtr. And East – West 40.54 mtr., total admeasuring 925.83 sq.mtr. To the east – Govardhan Ghat Road, To the west –Back side wall of house of Shri. Narayan Patil. To the south – Land belonging to Shri. Rajesh Chandak and Pushpa Chandak, To the North – Back side wall of house of Shri. Gangusing.”

4. In short, the nature of the original suit seeking share in the suit property and cancellation of sale-deeds was sought to be changed to that of a decree of pre-emption for execution of sale-deed in favour of plaintiffs.

5. The application was opposed by defendant no.5 (petitioner herein) by filing reply contending that the proposed amendment changes the entire nature of the suit. It appears that the rest of the defendants did not oppose the application for amendment. By order dated 30.08.2021, the trial Court proceeded to allow the amendment on payment of costs of Rs.500.

6. Mr. Gangakhedkar, the learned Counsel for petitioner would submit that the amendment allowed by the trial Court completely changes the nature of the suit. He would submit that the amendments are so drastic that the original nature of the suit is not at all retained and completely new lease is sought to be introduced. He would rely upon the judgment o