Maharashtra State Co operative Housing Finance CorporationversusBharat Co operative Housing Society Ltd

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                      AGK
                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION

                                       WRIT PETITION NO.2183 OF 2026
                                                   WITH
                                    INTERIM APPLICATION NO.1277 OF 2026

ATUL                  Maharashtra State Coop. Housing
GANESH                Finance Corporation                          … Petitioner
KULKARNI
Digitally signed by
                                 V/s.
ATUL GANESH
KULKARNI
Date: 2026.02.17
                      Bharat Coop. Housing Society Ltd.            … Respondent
14:50:09 +0530



                      Ms. Mayureshwari Korday with Mr. Nikhil Mhatre i/by
                      Mr. Akshay Deshmukh for the petitioner/applicant.
                      Ms. Mamta S. Srivastava, AGP for the State.


                                                   CORAM     : AMIT BORKAR, J.

                                                   DATED     : FEBRUARY 17, 2026
                      P.C.:

                      1.      The petitioner is the original disputant in proceedings under
                      Section 91 of the Maharashtra Cooperative Societies Act. During
                      the pendency of appeal, he filed an application seeking
                      amendment of the dispute. Through that amendment he wanted to
                      introduce three things. First, he wanted to place on record the
                      statement of accounts. Second, he wanted to add the names of
                      legal heirs of a defendant whose death had resulted in abatement.
                      Third, he wanted to mention names of certain defendants upon
                      whom service had not yet been effected before the Cooperative
                      Court. The appellate Court refused this request. The correctness of
                      that refusal is the issue.




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2.   The first part of the amendment concerns the statement of
accounts. A statement of account is a piece of evidence. It is not a
pleading. Pleadings contain facts which form the foundation of the
claim. Evidence proves those facts. Order 6 Rule 17 of the Code
permits amendment of pleadings only to correct or add material
facts. It does not permit production of additional evidence through
amendment. The Code separately deals with additional evidence at
the appellate stage under Order 41 Rule 27. If a party wishes to
produce account statements which were not produced earlier, the
proper course is to satisfy the appellate Court that the evidence is
necessary and falls within the requirements of Order 41 Rule 27.
By inserting such material through amendment, the litigant
attempts to bypass that scrutiny. Therefore the appellate Court
rightly held that the request could not be entertained under Order
6 Rule 17.

3.   The second part relates to bringing legal heirs of a deceased
defendant on record after the dispute had already abated against
that defendant. Abatement is not a procedural irregularity. It is a
legal consequence that occurs automatically when substitution is
not made within prescribed time. Once abatement takes place, the
proceeding as against that party comes to an end unless the Court
sets aside abatement on sufficient cause. This principle has been
clearly settled. The judgment in Jayalaxmi Janardhan Walawalkar
v. Lilachand Laxmichand Kapasi (1998) 3 Mah LJ 618 explains that
legal representatives cannot be added by indirect means such as
amendment or impleadment under general powers.




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4.      The reasoning is that the Code itself provides a specific
procedure. Order 22 Rule 4 provides substitution of legal
representatives within limitation. Order 22 Rule 9 provides setting
aside of abatement upon sufficient cause. When the statute
prescribes a particular method, the same result cannot be achieved
through another route. If parties are permitted to add legal heirs
by amendment, the limitation prescribed under Order 22 becomes
meaningless. The Court would then revive a dead proceeding
without examining delay or cause. That would defeat the scheme
of the Code. Therefore, once abatement occurs, nothing survives
against that party until abatement is set aside. Amendment cannot
revive it.

5.      Consequently, if the petitioner intended to continue
proceedings against the deceased defendant, he had to first apply
for setting aside abatement and explain the delay. Only after the
Court    allowed   such    application   could   substitution       follow.
Attempting to add legal heirs directly through Order 6 Rule 17 is
legally impermissible and the appellate Court correctly rejected it.

6.      The third part concerns defendants against whom the
dispute had already been dismissed due to non service. Such
dismissal is an order which has its own remedy. The proper course
is to seek recall or setting aside of that order by showing sufficient
cause under the applicable procedural provision. Amendment of
pleadings cannot reopen an order which has already attained
finality against those defendants. Amendment modifies pleadings.
It does not nullify judicial orders.




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7.     For these reasons each part of the amendment application
was legally untenable. The appellate Court did not refuse relief on
technical grounds. It refused because the petitioner invoked a
wrong provision for three different purposes. Each purpose had a
specific remedy under the procedural law and the petitioner
avoided those remedies.

8.     The order of the appellate Court therefore calls for no
interference. However, the petitioner is at liberty to pursue
appropriate proceedings. He may apply for additional evidence
under Order 41 Rule 27 or may seek setting aside of abatement
under Order 22 Rule 9 or may seek recall of dismissal against
unserved defendants by showing sufficient cause. If such
applications are filed, they shall be considered in accordance with
law.

9.     The writ petition stands disposed of accordingly. No order as
to costs.

10.    In view of disposal of the writ petition, interim application
does not survive and stands disposed of as infructuous.


                                             (AMIT BORKAR, J.)




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