928 WP 978 OF

2022.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

928 WRIT PETITION NO.978 OF 2022

ANNA VISHWANATRAO ANALDAS

VERSUS

ANJALI BALAPRASAD ANALDAS AND ANOTHER

...

Advocate for Petitioner : Mr. Kurundkar Sunil V.

CORAM

: MANGESH S. PATIL, J.

DATE

: 24.06.2022.

PER COURT :

The petitioner is aggrieved by the order passed by the trial court

permitting the respondents/defendants to carry out amendment in their

counter claim.

2.

The learned advocate for the petitioner vehemently submits that

the respondents by practicing fraud and behind the back of the petitioner

had entered into a compromise wherein the extent of the self-same suit

property Gat No. 351 was shown as 1-H 52 Are. By way of proposed

amendment the respondents are seeking to take a plea which is

inconsistent with the contents of the compromise as to the area of the

land. He would submit that the respondents though are the defendants

in the suit, they are the plaintiffs vis a vis the counter claim being put

forth by them and the parameters applicable to the amendment of plaint

will have to be applied to which the trial court has miserably failed. He

refers to the decision of the Supreme Court in the matter of Usha

Balasaheb Swami and Ors. Vs. Kiran Appaso Swami & Ors; 2007 SCR

1333.

3.

I have carefully gone through the order under challenge and the

papers and considered the submissions of the learned advocate. At the

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928 WP 978 OF

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outset it is necessary to bear in mind that a party cannot be prevented

from taking a particular stand. At the stage of amendment of pleadings,

proof of the facts sought to be added is not expected. How the proposed

amendment is factually untenable can certainly be demonstrated during

the course of the trial.

4.

By way of proposed amendment the respondents have been

allowed to carry out the amendment so as to make an averment to the

effect that in prayer clause, they are now seeking to add that the counter

claim is in respect of a 52 Are portion out of total area of 1-H 32-Are

from the land Gat No. 351. It has been specifically mentioned that only

the figure 52-Are had remained to be inserted inadvertently.

5.

Considering the fact that the proposed amendment merely makes

the prayer precise, which is not inconsistent with the existing pleadings

and when the parties are still to go for trial, no fault or illegality can be

found in the order passed by the trial court allowing the amendment to

be carried out in the counter claim.

6.

Needless to state that it would be always open for the petitioner to

lead evidence to disprove the averments in the counter claim.

7.

There is no substance in the Writ Petition. It is dismissed.

(MANGESH S. PATIL, J.)

mkd/-

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