1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 1908/2008 (Smt. Shyamkanta wd/o Ramesh Joshi & others VERSUS Sureshsingh Kashiramsingh Raghuwanshi & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri A.S. Chandurkar, counsel for the petitioners. Shri Jaideep Chandurkar, counsel for the R-1. CORAM : SMT. VASANTI A. NAIK, J. DATE : OCTOBER 15, 2008. By this petition, the petitioners impugn the order passed by the Civil Judge (Senior Division), Daryapur on 08.04.2008 rejecting the amendment application filed by the plaintiffs. The petitioners are the legal heirs of the original plaintiff no.1. A suit was filed by the plaintiffs for a declaration that the action on the part of the defendant, to take forcible possession of the suit property and to create obstruction in the running of the hotel business, is illegal and in contravention of the legal rights vested in the plaintiffs. The plaintiffs also sought a permanent injunction restraining the defendant from taking forcible possession of the suit property. According to the plaintiffs, the suit 2 property was situated in Old Ward No.16, New Ward No.9, Property No.95/1 along with the open site on three sides of the structure. The plaintiffs pleaded that the defendant was the owner of the suit property and the plaintiffs were occupying the suit property on a monthly tenancy. After the issues were framed, the plaintiffs filed an application for amendment of the plaint. According to the plaintiffs, it was necessary to file the amendment application in view of the pleadings of the defendant in his written statement. By the proposed amendment, the plaintiffs wanted to deny the pleadings of the defendant that there were three plots bearing Nos.95, 95/1 and 95/2 in existence and Plot No.95/1 was in possession of the plaintiffs in the capacity of the licensee. In the proposed amendment, it was stated that the aforesaid pleading of the defendant was absolutely false. Certain other pleadings in the written statement were also sought to be denied by the plaintiffs by the proposed amendment. It was lastly stated in the proposed amendment that it was a settled position of 3 law that in case of any controversy between the plot numbers of the property and the boundaries of the property, the boundaries would prevail and the plaintiffs were entitled to the relief on the basis of the boundaries mentioned in plaint paragraph no.1. The amendment application was strongly opposed by the defendant. According to the defendant, the plaintiffs were trying to change the nature of the suit by the proposed amendment. The defendant, therefore, sought for the dismissal of the amendment application. By the impugned order dated 08.04.2008, the trial Court rejected the amendment application mainly on two grounds. The trial Court observed that by the proposed amendment, the plaintiffs were trying to change the nature of the suit property by adding another property as the subject matter of the suit. The Court also observed that the amendment application was liable to be dismissed in view of the amended provisions of Order VI Rule 17 of the Code of Civil Procedure as the plaintiffs had failed to point out that in spite of due diligence, the plaintiffs could 4 not have raised the matter at the commencement of the trial. The learned counsel for the petitioners submitted that the trial Court was not justified in holding that the proposed amended changed the nature of the suit and the plaintiffs were not entitled to the grant of the prayer made in the amendment application in view of the amended provisions of Order VI Rule 17 of the Code of Civil Procedure. According to the counsel for the petitioners, by the proposed amendment, the plaintiffs merely wanted to explain and describe the property more clearly and also wanted to point out that the boundaries were specifically mentioned in paragraph 1 of the plaint and in case of dispute about the identity of the properties on the basis of the plot number and the boundaries of the property, the boundaries would prevail. The learned counsel for the respondent no.1 supported the order passed by the trial Court and submitted that there is no reason whatsoever for interfering with the discretion exercised by the trial 5 Court in rejecting the amendment application by the order dated 08.04.2008. He sought for the dismissal of the petition. I have perused the complaint, the written statement, the amendment application, the reply filed thereto and the impugned order dated 08.04.2008. It appears that the trial Court was justified in rejecting the amendment application by the order dated 08.04.2008, though the reasons recorded by the trial Court for rejecting the same are not just and proper. By the proposed amendment, the plaintiff merely wanted to deny the pleadings of the defendant in the written statement and further wanted to plead that in case of controversy between the plot numbers and the boundaries, the boundaries would prevail and the relief could be granted to the plaintiffs as they had specifically mentioned the boundaries in paragraph 1 of the plaint. The proposed amendment, it appears, was not with a view to explain the pleadings of the plaintiffs. The plaintiffs had categorically stated the boundaries of the suit property in paragraph 1 of the plaint. The defendant had denied the pleadings of 6 the plaintiffs and had further pleaded certain other facts. It is not for the plaintiffs to file the amendment application merely to deny the pleadings of the defendant in the written statement. Moreover, the plaintiffs merely wanted to plead the well settled position of law by the proposed amendment. It is the principle of pleadings that the law should not be stated and only material facts should be pleaded by the parties. This part of the proposed amendment was also not necessary for deciding the lis between the parties as the proposition could have been canvassed by the plaintiffs at the appropriate stage of the proceedings even in the absence of the pleadings in that regard. For the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE APTE