1 wp-3762-11 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3762 of 2011 Dattaram Dharma Mayekar & Anr. .. Petitioners Versus Abhimanyu Dharma Mayekar & Ors. .. Respondents Mr. S. M. Railkar for the Petitioners Ms Sukruta Chimalkar i/b Mr. S.B.Prabhawalakr for the Respondent Nos.1 to 8 CORAM : R.M.SAVANT, J. DATE : 7th DECEMBER, 2011 ORAL JUDGMENT : 1 Rule. With the consent of the parties made returnable forthwith and heard. 2 The above Petition takes exception to the Order dated 27­1­2011 passed by the Learned Civil Judge, Senior Division, Ratnagiri, by which Order the Application Exhibit 151 in Regular Civil Suit no.18 of 2005 for amendment of the plaint in terms of the proposed amendment contained therein filed by the Plaintiff came to be allowed subject to the payment of costs of Rs.500/­. 3 Shorn of unnecessary details the few facts can be stated thus The Respondent No.1 herein is the original Plaintiff who has filed Regular Civil Suit No.18 of 2005 for partition and possession of the properties mentioned in Schedule­A, Schedule­B and Schedule­C of the said Suit which according to him are the ancestral properties. 2 wp-3762-11 4 In so far as, the Schedule A is concerned, the said schedule consists of as many as 36 items and against each item a survey number has been mentioned its area and its assessment. In so far as, the Schedule B is concerned, there are as many as 7 items containing the same information as Schedule A. In so far as, the Schedule C is concerned, the said schedule consists of a house situated in Survey No.165, Hissa No.2 in respect of which it is the case of the Plaintiff that he has spent an amount of Rs. 60,000/­ 5 In the plaint in paragraph 9 the Plaintiff has averred that in respect of the lands mentioned at item Nos.8, 9, 10, 11, 14, 26, 27, 28, 33 and 36, he has spent money from his own income and has planted mango trees in the said land and, therefore, on partition the said lands should be allotted to his share. 6 In so far as, Survey No.164 part 12 is concerned, wherein the house is situated he has expended an amount of Rs.60,000/­ towards the house and for construction of well. The Plaintiff filed an Application for amendment of the plaint sometime in January 2009 which Application was numbered as Exhibit 128 and the amendment sought was to the same extent as is sought by the present application Exhibit 151. Though the Learned Counsel for the Petitioners i.e. the Defendants states that the scope has now been extended much more than what was sought by Exhibit 128. 3 wp-3762-11 7 Be that as it may, the said amendment application Exhibit 128 was allowed by the Trial Court by Order dated 25­2­2009 which resulted in the present Petitioners filing a Writ Petition in this Court being Writ Petition No.3871 of 2009 which came to be disposed of by this Court by Order dated 15­3­2010, by which Order, the Plaintiff was permitted to withdraw the Application Exhibit 128 with liberty to file a fresh application for amendment of the plaint. It is in accord with the said liberty granted that the instant Application Exhibit 151 has been filed. In the context of the mandate of Order 6 Rule 17 of the Civil Procedure Code. The Plaintiff has averred that the amendment sought by the said Application Exhibit 151 was necessitated in view of the information which he got after he had engaged some retired Revenue Officers to carry out survey of the lands in question. According to the Plaintiff, the said information was not available with him earlier and, therefore, the some wrong survey numbers were mentioned in Schedule A and by the present Application for amendment Exhibit 151 some of the survey numbers were sought to be deleted and some new survey numbers sought to be incorporated. This was in respect of the lands which the Plaintiff claimed should be allotted to him in the event partition is ordered, as he is the person who had expended for cultivation of the land as well as for the house and the well in question. The said Application was opposed by the Defendant i.e. the Petitioners herein by filing their reply. By the impugned 4 wp-3762-11 Order the said application has been allowed by the Trail Court. The Trial Court has found that the reasons mentioned by the Plaintiff for the delay in filing the Application are worthy of acceptance. The Trial Court was of the view that the amendment if allowed would ultimately aid in resolving the dispute between the parties. 8 Heard the learned Counsel for the parties. 9 The Learned Counsel for the Petitioner would contend that the reasons mentioned by the Plaintiff for filing Exhibit 151 dated 27­1­2011 in the teeth of the fact that the said information was available with him in the year 2008 could not have been accepted by the Trial Court as the Plaintiff has not set out any justifiable reason for the delay. The Learned Counsel would contend that by deleting some survey numbers and by incorporating some other new survey numbers in Schedule A. The scope of the amendment application goes much beyond Exhibit 128 as originally filed in the said suit. The Learned Counsel would contend that the said application for amendment should not have been entertained after affidavit of evidence was filed by the Plaintiff. Per contra, it is submitted by the Learned Counsel appearing for the Respondents herein that the reasons why there was delay in filing the application Exhibit 151 have been stated in the application itself. The Learned Counsel would contend that it was necessary to mention to correct survey numbers as the said information was not available at the 5 wp-3762-11 time when the suit was filed. The Learned Counsel would contend that the incorporation of the said correct survey numbers would facilitate the complete adjudication of the disputes between the parties. 10 Having heard the learned Counsel for the parties and having bestowed my anxious consideration to the rival contention of the parties. 11 In the instant case, it is required to be borne in mind that the Plaintiff has filed the suit for partition and possession of the ancestral properties. The description of the properties are mentioned in schedule A, B and C of the plaint. The Plaintiff has specifically averred that in the event of partition the lands which he had cultivated out of his own income should be allotted to his share as also the suit house towards which, it is the case of the Plaintiff that he has expended an amount of Rs.60,000/­ in the up keep of the house as well as the construction of the well. Hence, ultimately what plaintiff is seeking is that in the event of partition, the lands which he has cultivated should come to his share. It is required to be noted that in paragraph 9 of the plaint he has mentioned such properties which according to him should come to his share as he has cultivated them. If there was wrong mention of the survey numbers which he has cultivated, the Plaintiff was entitled to correct the said survey numbers. It is required to be noted that the reasons why the amendment application was required to be moved have been stated by the Plaintiff in the said application Exhibit 151. It is stated by him that the said 6 wp-3762-11 amendment application was moved after the land was got surveyed by him through certain retired Revenue officers who have given him the details of the exact survey numbers. It is, therefore, on such information which he has procured after filing of the suit and after the suit has progressed that he has sought to incorporate by way of the amendment application. 11 In my view, considering the nature of the amendments that have been allowed, they would cause no prejudice to the Defendants as ultimately if the properties are to be partitioned then what the Plaintiff is seeking that that the lands which have been mentioned in paragraph 9 as amended should be allotted to his share as well as the property in survey No.165/12 in respect of which property according to the Plaintiff he has expended Rs.60,000/­. It is trite that an amendment application can be allowed if it results in bringing the facts before the Court which would facilitate the dispute between the parties being completely adjudicated. 12 In my view, therefore, no fault can be found with the discretion exercised by the Trial Court, in allowing the said amendment application. In that view of the matter, no case for interdiction in the Writ jurisdiction of this Court under Article 227 of the Constitution of India, is made out. Writ Petition is accordingly dismissed. 13 Rule is discharged, with no order as to costs. (R.M.SAVANT, J.)