Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.1093 OF 2011
Adv. Pallavi w/o Abhijit Mahashabde,
age 33 years, occupation : Lawyer,
r/o Old Hislop College, Lane Mahal,
Nagpur (added as Defendant No.3). ... Petitioner
- Versus -
1) Shri Milind s/o Balaji Gandhi,
age 37 years, occupation :
service, r/o Ram Mandir Lane,
Mahal, Nagpur, through Power of
Attorney Holder Shri Mohan
Rajaram Patwari, age 45 years,
occupation : service, r/o Buty
Plot No.712, Dharampeth, Nagpur
(original respondent no.1/plaintiff)
2) The City of Nagpur Corporation,
through its Municipal Corporation,
Civil Lines, Nagpur (Original
defendant no.1)
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3) Smt. Kalpana w/o not known
Patrale, r/o Bapurao Galli,
Itwari, Nagpur (Original defendant
no.2). ... Respondents
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Shri D.M. Upadhye, Advocate for the petitioner.
Shri V.K. Paliwal, Advocate for the respondent no.1.
Shri S.M. Puranik, Advocate for the respondent no.2.
Shri P.M. Pande, Advocate for the respondent no.3.
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CORAM : R.M. SAVANT, J.
DATED : JUNE 7, 2011
ORAL JUDGMENT :
Rule made returnable forthwith. Heard finally
with consent of the learned Counsel for the parties.
2) The above petition filed under Articles 226
and 227 of the Constitution of India takes exception to
st
the order dated 27/1/2011 passed by the 21 Joint Civil
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Judge, Junior Division, Nagpur whereby the amendment
application (Exh. 74) filed by the original plaintiff, i.e.
respondent no.1 herein came to be allowed and the
plaintiff was directed to carry out amendment in the
plaint within 14 days from the date of the said order. It
is required to be noted that the suit as originally filed,
is one challenging the notices under Sections 53 and
54 of the Maharashtra Regional and Town Planning
Act, 1966 issued by the Nagpur Municipal Corporation
to the plaintiff. The said notices are in respect of the
alleged unauthorized construction carried out by the
plaintiff. The present petitioner, who claims to be
owner of the property in question, came to be joined as
party defendant to said Regular Civil Suit
No.1175/2006 sometime in the year 2009.
3) It is pertinent to note that earlier, at an
interim stage, the matter had come to this Court and
this Court by order dated 20/11/2009 had directed the
trial Court to decide the said Regular Civil Suit
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No. 1175/2006 as early as possible and in any case by
30/4/2010. I am informed at the Bar by the learned
Counsel for the respondent no.1, i.e. plaintiff that
cross-examination of the plaintiff is yet to commence.
4) By the application in question in which the
impugned order came to be passed, the plaintiff seeks
to amend the plaint so as to incorporate averments
and claim relief against defendant no.3, i.e. petitioner
herein so as to restrain her from complaining to the
plaintiff’s employer, i.e. Vidarbha Premier Cooperative
Housing Society. It is required to be noted that the
said application was moved on 12/1/2011 though the
plaintiff was aware of the fact that the suit has been
expedited and has been directed to be disposed of by
30/4/2010. Be that as it may, in my view, considering
the amendment sought, there is no causal connection
between amendment and the relief sought in the
plaint, which is qua the notices issued under Sections
53 and 54 of the Maharashtra Regional and Town
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Planning Act, 1966. It is further required to be noted
that the trial Court was not aware of the order dated
20/11/2009 passed by this Court by which the suit has
been expedited and oblivious of the said fact, the trial
Court has allowed the amendment application on the
specious ground that no prejudice would be caused to
the defendants. In my view, considering the subject
matter of the suit and also the fact that the suit has
already been expedited, it was not at all necessary to
grant the said amendment application. The above writ
petition is, therefore, allowed. The impugned order
dated 27/1/2011 is set aside. Since the suit has
already been expedited by the order dated 20/11/2009
passed by this Court and since the time set by the said
order has already expired, in my view, interest of
justice would be served if the trial Court is directed to
hear and decide the said Regular Civil Suit
th
No.1175/2006 by 15 September 2011. Needless to
say that though the impugned order allowing the
amendment application is set aside, it will be open for
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the plaintiff to file appropriate proceedings against the
petitioner herein in future, if so advised.
5) Rule is made absolute in the above terms. No
order as to costs.
JUDGE
khj
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