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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 3754 OF 2015

1. Sou. Alkabai w/o Baburao Mahajan,

Age : 49 years, Occupation : Household.

2. Surekhabai d/o Keshav Mahajan,

Age : 44 years, Occupation :

Household. Both R/o Waghod,

Taluka, Raver, District : Jalgaon.

..PETITIONERS

[Orig.plaintiffs]

VERSUS

1. Subhash s/o Namdeo Patil,

Age : 60 years, Occupation :

Agriculture.

2. Ravindra S/o Namdeo Patil,

Age : 56 years,

Occupation : Agriculture.

3. Namdeo s/o Khushal Mali,

Dead through his

legal representative-

3-A. Ramkrishna s/o Namdeo Mahajan,

Age : Major,

Occupation : Agriculture,

3-B Kashinath s/o Namdeo Mahajan,

Age : Major, Occupation : Agriculture.

All R/o Waghod, Taluka : Raver

District : Jalgaon.

..RESPONDENTS

[Orig.Defendants]

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…..

Mr. Dhananjay Mane, Advocate holding for Mr. Milind Patil for Petitioner

Mr. A.J.Patil, Advocate for Respondent Nos. 1, 2, 3-A and 3-B

…..

CORAM : MANGESH S. PATIL, J.

JUDGMENT RESERVED ON : 13.10.2021

JUDGMENT PRONOUNCED ON : 20.10.2021

JUDGMENT :-

Heard. Rule. The Rule is made returnable forthwith. The learned

advocates for the respondents waive service. With the consent of both the

sides the matter is heard finally at the stage of admission.

2]

The petitioners are impugning the order passed by the learned Judge of

the trial Court in their Suit for partition and separate possession whereby their

application (Exh. 88) seeking leave to withdraw the Suit under Order XXIII

Rule 1(3) of the Civil Procedure Code with liberty to file a fresh Suit has been

rejected.

3]

The facts as are relevant for the decision of the writ petition may

be summarized as under :

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One Namdeo was having two wives Yenabai and Dhanabai. He

died in 1971. Both his wives are also no more. Yenabai is survived by two

daughters Dwarkabai and Yashodabai whereas Dhanabai is survived by

respondent Nos. 1 and 2, one more son Ravindra and three daughters

Nababai, Vimalbai and Kamalbai. Since Namdev died intestate without

having a male issue, the petitioners filed the Suit for general partition of all

the properties left behind by him and separate possession of their shares.

4]

The respondent Nos. 1 and 2 contested the Suit by filing their

separate written statements. They admitted the genealogy and inter alia

raised an objection regarding non-joinder of parties namely Ravindra and

other sharers. The issues were framed and the matter went for trial. After the

evidence was over and the Suit was listed for hearing arguments, the

petitioners filed application for amendment of plaint under Order VI Rule 17

of C.P.C. (Exh. 85) as also seeking addition of the parties under Order I Rule

10 of the C.P.C. The respondent Nos. 1 and 2 opposed that application. The

learned Judge by the order dated 5.12.2014 rejected the application on the

ground that already by virtue of order dated 13.2.2009 on petitioner’

s

application (Exh. 28) they were allowed to carry out amendment and to add

parties. The petitioners had failed to carry out the amendment and proceeded

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with the hearing of the Suit.

5]

However, within a month of rejection of application for

amendment and addition of parties, the petitioners submitted the application

under Order XXIII Rule 1(3) of the C.P.C. on 13.2.2015, contending that since

the daughters are also entitled to claim a share and as Yashodabai and other

sisters of respondent Nos. 1 and 2 were not the parties to the Suit there was a

formal defect and it would fail and sought the permission of the Court to

withdraw the Suit with liberty to file a fresh Suit on the same cause of action.

After hearing both the sides, by the order which is impugned in this writ

petition, the learned Judge of the trial Court has rejected the application on

the ground that the application was filed at a belated stage and if the

permission was granted it would result in harassment of the respondents as