1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Writ Petition No.3287 of 2008 (Mrs. Kiran w/o Chandansingh Rotele v. Ashok Laxman Jawle and others) -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-- Office Notes, Memoranda of Coram, appearances, Court's orders or directions : Court's or Judge's orders and Registrar's orders. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM : R.C. Chavan, J. DATE : 1st August, 2008 1. By this petition, the petitioner takes exception to the order passed by the learned Civil Judge, Junior Division, Chimur, granting the respondent-plaintiffs' application for amendment to the plaint. 2. The respondent-plaintiffs filed an application for amendment of plaint on 20-9-2007 in the suit filed in the year 2003. Initially, in the plaint, the plaintiffs had sought a declaration that the sale-deed in favour of petitioner-defendant No.3 executed by defendant Nos.1 and 2 on 10-5-2000 was not binding on the plaintiffs. By amendment, the plaintiffs wanted to add the words to the effect that the sale-deed was null and void, and, therefore, not binding. According to the plaintiffs, this amendment became necessary after the decision of a proceeding, which was pending before the Additional Commissioner, Nagpur Division, Nagpur. This decision came on 17-1-2007, whereby the Additional Commissioner had in fact held in favour of the plaintiffs. The other pleas sought to be incorporated related to this decision dated 17-1-2007. 2 3. I have heard Shri H.R. Dhumale, Advocate, holding for Shri Anand Parchure, Advocate, for the petitioner. The learned counsel states that insertion of the words to the effect that the sale-deed was null and void at such a late stage of the proceedings, was not permissible, because limitation for taking such a plea was also over. He further submitted that there is no reason why the plaintiffs could not have sought such a prayer when the plaint was first filed, and that the cause sought to be made out on the basis of the decision of the Additional Commissioner dated 17-1-2007 is in fact fictitious, since that decision has no bearing on this matter. 4. First, the amendment does not change the nature of the suit. Secondly, the plea of limitation would still be available to the petitioner- defendant, who could amend his written statement in response to the amended pleas and raise the plea of the relief being barred by limitation. And most importantly, the petitioner had himself filed Writ Petition No.1474 of 2007, presumably, challenging the mutation entry by the Collector. While dismissing this petition, this Court held that a Special Civil Suit was already pending, to which the petitioner was a party-defendant. It was observed that the question of title could be decided by the Civil Court itself. It is seen that plaintiffs Ashok, Manohar, Jayant and Anil were parties to that Writ Petition as well. Thus, in fact, the amendment by the plaintiffs gives the petitioner an opportunity to raise the question of title, since the respondent-plaintiffs have sought a declaration that the sale-deed in favour of the petitioner is null and void. The petitioner should not have rushed to this Court without availing of the opportunity of raising appropriate pleas in his written statement before the Trial Court. 3 5. The order impugned does not indicate anything to suggest that if left undisturbed, it would cause irremediable injustice to the petitioner. 6. The petition is, therefore, dismissed. JUDGE Lanjewar