1 caf420-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa CIVIL APPLICATION NO.420 OF 2009 IN FIRST APPEAL NO. 604 OF 1999 Naina Hemantkumar Mehata .. Applicant V/s. Sadhanaben Surendra Shah (Since deceased through her LR's) Sanjay Surendra Shah & Ors. .. Respondents ..... Mr. V. S. Gokhale for the applicant. Mr. Pritesh Bohade for respondent No.2. Mr. Abhijit Desai for respondent Nos. 3 and 4. ..... CORAM : A. S. OKA, J. DATE : APRIL 21, 2011. P.C.:- Heard the learned counsel appearing for the applicant. Heard the learned counsel appearing for the Respondent No.2 and the learned counsel appearing for the third and fourth respondents. The first respondent is dead and the second to fourth respondents are legal representatives of the first respondent. 2 caf420-09 2. The applicant is the original plaintiff. The applicant is the appellant in the aforesaid First Appeal which has been disposed of. Appeal was preferred by the applicant for challenging the decree of dismissal of the suit for partition. In Appeal, the applicant succeeded and the suit was decreed in terms of prayer clause (1) of plaint. The prayer (1) of the plaint is that the partition of the suit properties be effected though a Court Commissioner and the applicant's 1/5th separate share in the suit properties be given to her. 3. In the partition proceeding, a Court Commissioner was appointed. The Court Commissioner in his report recorded that the description of various suit properties in the plaint was erroneous. It appears that an application was made by the applicant in the final decree proceedings for amendment of the plaint and the decree for the purposes of incorporating the correct description. The said application was rejected by the trial Court by holding that as the preliminary decree has been passed by this Court, the application should have been made to the High Court. Accordingly, this Civil Application has been filed for seeking permission to amend the plaint for correcting the correct description of the suit properties. There is 3 caf420-09 a consequential prayer made for amendment of the decree. 4. The learned counsel appearing for the applicant has made a reference to the report of the Commissioner appointed during the partition proceedings. He has made a reference to the objections filed by the second respondent to the Court Commissioner's Report. He submitted that there is an error in description of the suit property described in the plaint and that applicant wants to carry out amendment of the description of the suit properties in terms of report of the Commissioner which is unchallenged. He invited attention of the Court to the proposed amendments as well as the averments made in the original plaint. 5. The learned counsel appearing for the second respondent as well as third and fourth respondents vehemently opposed the application by pointing out that at this stage such a prayer of the amendment of plaint cannot be allowed as the amendment is of a drastic nature. Their submission is that at this stage, the amendment cannot be allowed. 4 caf420-09 6. I have considered the submissions. Under Section 153 read with Section 151 of the Code of Civil Procedure, 1908, this Court can always exercise powers to allow amendment of the pleadings at any stage of the proceedings. 7. Perusal of the description of the suit property in the plaint shows that the properties at Serial No.1A and 1B are residential flats. The property at serial No.1D is again a flat. Property at Serial No.1E is a flat on the fourth floor ademasuring 400 square feet situated in the property described therein. The property at Serial No.1C consists of 10 shops each admeasuring 200 square feet. The property at serial No.1E consists of four flats each admeasuring 100 square feet in a building described therein. The property at Serial No.1F is jwellery-gold ornaments worth Rs.3,00,000/- weighing 500 grams and articles worth Rs. 2,00,000/-. The Serial No.1G is of cash amount in Bank. 8. I have perused the report of the Court Commissioner filed in the partition proceedings. I have also perused the draft amendment. As far as the description of flats at Serial Nos. 1A, 1B, 1D and 1E is 5 caf420-09 concerned, by the proposed amendment, the applicant wants to incorporate correct description of the same flats in terms of the report of the Court Commissioner. 9. Perusal of the Court Commissioner's report shows that as far as description of the aforesaid four properties is concerned, the discrepancy is in incorporating flat number and/or the area of the flats. The said amendment can be allowed as there is no dispute as regards the existence of the said flats. However, as regards other properties described in the plaint, the applicant in her proposed amendment wants to completely change the nature of the description of the properties. At this stage, when the Appeal against the decree has been disposed of, such drastic amendments cannot be allowed. 8. Hence, the application will have to be partly allowed by passing following order : :: O R D E R :: i. The prayer for amendment of the plaint in so far as property described in paragraph No.1A, 1B, 1D and 6 caf420-09 1E of the plaint concerned is hereby allowed. ii. Rest of the prayers for amendment of the plaint are rejected. iii. After carrying out the amendment to the plaint, necessary amendment shall be carried out to the decree. iv. The Rule is partly made absolute with no order as to costs. JUDGE