1 913-WP-2755-2014.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.2755 OF 2014

Hasan Khan S/o Rumkhan

Age: 77 years, Occu: Nil,

Through its GPA

Kayyum Khan S/o Hasan Khan

Age: 45 years, Occu: Plumber,

R/o: Plot No.7, Aasifiya Colony,

Aurangabad.

Tq. & Dist. Aurangabad.

… Petitioner

Versus

1. Khurram Ahemad Khusro,

Age: 30 years, Occu: Business,

Chelipura, Aurangabad.

2. Shaikh Jahir S/o Shaikh Shabbir

Age: 39 years, Occu: Business,

R/o: Deodi Bazar, City Chowk,

Aurangabad, District Aurangabad.

… Respondents

…

Mr. V. P. Latange h/f Mr. Shinde Balaji S., Advocate for Petitioner

Mr. A. P. Bhandari, Advocate for Respondent No.2

…

CORAM : N. B. SURYAWANSHI, J.

DATE

: 8^th December, 2021

ORAL JUDGMENT :

.

RULE. Rule made returnable forthwith. Heard finally with the

consent of the parties.

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2.

This petition is directed against the order passed by 7^th Joint

Civil Judge, Senior Division, Aurangabad below Exhibit-55 in Special Suit

No.119/2011, thereby rejecting the prayer of the petitioner/original

plaintiff seeking amendment in the plaint.

3.

Special Civil Suit No.119/2011 is filed by the

petitioner/original plaintiff seeking a declaration that the sale deed

bearing No.594/2011 executed by the defendant No.1 in favour of

defendant No.2 dated 28-01-2011 is illegal, null and void, and not

binding on the plaintiff. Perpetual injunction is sought restraining the

defendant no.2 from alienating, dispossessing or creating third party

interest in the suit land admeasuring 20 R boundaries which are given in

the plaint.

4.

The suit was resisted by the respondents/defendants by filing

a written statement. The petitioner/original plaintiff, thereafter, filed an

application Exhibit-55 under Order VI Rule 17 of the Civil Procedure

Code seeking amendment in the boundaries of the suit land. In the

amendment application, it is mentioned that at the time of filing suit,

inadvertently, it is mentioned that towards southern side, there is “Gut

No.247” when in fact on southern side there is a “road”. The same has

occurred due to typing mistake and wrong understanding of the learned

advocate representing the plaintiff at that point of time. The said

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application was resisted by the respondents/defendants. The trial court

rejected the said application. Hence, the present petition.

5.

After hearing the rival submissions of the parties and after

going through the record, it is clear that the amendment as sought by the

petitioner/original plaintiff does not change the nature of relief claimed

in the suit. It appears to be a bonafide inadvertent mistake, which the

plaintiff sought to correct. The trial court by considering the settled legal

position that amendment should be liberally allowed and the principles

set out in that behalf in catena of decisions of this Court as well as the

Hon’ble Supreme Court ought to have allowed the amendment in the

facts of the present case. The trial Court has ignored the legal position

that the litigant should not suffer either on account of technicalities or on

account of mistake committed by a Court of Law. The approach of the

trial court while rejecting the application seeking amendment appears to

be hyper-technical. Though the trial court has observed that after two

years, the amendment application was moved, fact remains that trial has

not commenced and the parties are yet to lead evidence. For delay of two

years, the defendants could have been adequately compensated in terms

of costs. I am therefore of a considered view that the impugned order

passed by the trial court is unsustainable in law and facts of the present

case and the same is liable to be quashed and set aside. Hence the

following order:

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ORDER

(i) Writ Petition is allowed in terms of prayer clause “B”.

(ii) The impugned order passed by the 7^th Joint Civil Judge, Senior

Division, Aurangabad below Exhibit-55 in Special Suit