SHIVAJI FULCHAND DESHMUKH THROUGH LRS SUMAN YOURAJ DESHMUKH AND OTHERSversusNILABAI ALIAS NILAWATI VITTHALRAV LAVAND DIED THR LRS ANIL VITTHALRAO LAVAND AND OTHERS

2026:BHC-AUG:38513
                                                 (1)                        14 WP 10794 OF 2024


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                              14 WRIT PETITION NO. 10794 OF 2024

                 SHIVAJI FULCHAND DESHMUKH THROUGH LRS SUMAN YOURAJ
                                     DESHMUKH AND OTHERS
                                                VERSUS
               NILABAI ALIAS NILAWATI VITTHALRAV LAVAND DIED THR LRS ANIL
                                VITTHALRAO LAVAND AND OTHERS
                                                  ...
           Mr. M. V. Salunke h/f. Mr. V. D. Salunke, Advocate for the Petitioners
           Mr. V. S. Undre, Advocate for Respondent Nos.1 to 4 (Through V.C.)
                                                  …
                                             CORAM : AJIT B. KADETHANKAR, J.
                                             DATE      : 24.08.2026

           PER COURT :-

           .           The suit is filed for partition and separate possession. The plaintiff

           realised that a property which ought to have been the subject matter of the

           suit remained to be added in the pleadings at Exhibit-1. This was realised after

           the written statement was filed. Thereafter, an application was filed at the

           behest of the petitioner at Exhibit-189 to permit the plaintiff to amend the

           pleadings by incorporating land Gat No.152 in the property description.


           2.          After hearing both the parties, vide order dated 29.11.2022 the

           learned Joint Civil Judge Senior Division, Osmanabad allowed the application

           below Exhibit-189 and the plaintiff was permitted to amend the pleadings

           pursuant to the application.
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3.           Mr. V. D. Salunke, learned Advocate for the defendant would fairly

submit that the order allowing the amendment is not challenged by the

petitioners and the same has attained finality. Even today, their grievance is

that subsequent to the amendment in the pleadings, the plaintiff filed a new

additional affidavit in chief which incorporated the contents about Gat No.152

also. He submits that the pleadings depict that it is not styled as an additional

affidavit in chief or supplementary affidavit in chief. He would submit that the

plaintiff has incorporated an entirely new affidavit in chief which was in fact

already on record and nor was struck down by the Court.


4.           Mr. Salunke submits that the plaintiff may be entitled to adduce

evidence only to the extent of the amendment granted by the Trial Court.

However, under the garb of supplementary or additional examination-in-chief,

neither a party/plaintiff is permitted to produce an entirely fresh or new

examination-in-chief nor it is justifiable on the part of the learned Judge of the

Trial Court to consider such whole new examination-in-chief. Mr. Salunke

submits that he has reservations on the observations expressed by the learned

Judge of the Trial Court are that there is absolutely no change in the

examination-in-chief filed earlier and the fresh examination-in-chief.


5.           Mr. Undre, learned Advocate for the respondents/plaintiffs

making his submissions through video conferencing submits that the

apprehension of the petitioners is not correct. He would submit that the new
                                      (3)                        14 WP 10794 OF 2024


examination-in-chief may not be treated as a new examination-in-chief and it

be treated only to the extent of such text which is produced before the Court

pursuant to the amendment granted by the Court. Mr. Undre further submits

that the petitioners are at liberty to cross-examine the plaintiff on any point

which is a part of the new examination-in-chief.


6.          I heard both the learned Advocates for the respective parties

extensively. I perused the papers produced before me. It is not in dispute that

the order allowing the amendment for incorporation of the amendment on the

application filed below Exhibit-189 is intact even today. The petitioners have

neither challenged that order nor intend to challenge that order. The only

grievance of the petitioners is in respect of the mode by which the amended

pleadings are sought to be proved by the plaintiff.


7.          It is trite law that fresh evidence is not at all allowed on the basis

of an amendment to the pleadings. I can see that the amendment is allowed

by the Court observing that it does not change the nature of the controversy. If

so, the plaintiff is at liberty to tender additional examination-in-chief to the

extent of the amended portion in the plaint. By allowing the plaintiff to file or

by accepting the full examination-in-chief from the plaintiff unnecessarily, this

additional round of litigation is created between the parties. I refrain myself

from comparing both the examination-in-chief while exercising my jurisdiction

under Article 227 of the Constitution of India.
                                       (4)                        14 WP 10794 OF 2024


8.           Although such submission is made by the learned Advocate for

the plaintiffs, while considering the fair submissions of the learned Advocate

for the petitioners, I deem it appropriate to dispose of this writ petition by

permitting the plaintiffs to file an additional examination-in-chief only to the

extent of the amended plaint in the light of the order passed on Exhibit-189.

Such additional examination-in-chief shall be in continuation of the

examination-in-chief already tendered by the plaintiff. If such additional

examination is filed, needless to mention, the defendants are at liberty to

cross-examine the plaintiffs on the amended portion.


9.           In view of this, the impugned order dated 14.08.2023 passed by

the Trial Court under application Exhibit-194 must go. Hence I pass following

order :


                                   ORDER

      I.     The Writ Petition is allowed.

      II.    The impugned order dated 14.08.2023 passed below
      Exhibit-194 in Regular Civil Suit No.20 of 2005 passed by the
      learned Civil Judge Senior Division, Osmanabad is quashed and
      set aside.

      III.   The examination-in-chief filed by the plaintiffs at Exhibit-
      194 stands discarded. The earlier examination-in-chief shall be
      read and considered by the Trial Court while adjudicating the
      civil suit on its own merits. The plaintiffs/respondents are
                                      (5)                        14 WP 10794 OF 2024


      permitted     to    produce     an    additional/supplementary
      examination-in-chief within a period of one month from today.

      IV.   Such    additional/supplementary        examination-in-chief
      shall be only to the extent of the amended portion in the
      Exhibit-1.

      V.    The petitioners/defendants are at liberty to cross
      examine the plaintiffs.

      VI.   The Writ Petition stands disposed of.

10.         This Court is surprised to see that the suit is pending since 2005

and, without there being any prohibition by any order of any Court, the Trial

Court has not proceeded with the suit. This Court requests the learned Judge

of the Civil Court to send a report to the learned Registrar (Judicial) of this

Court indicating the reasons for the delay and shall ensure that the suit stands

disposed of within a period of six months from today.


11.         No party shall seek an adjournment on any count unless the

adjournment is by consent. However, the outer limit as ordered above shall be

binding on the Trial Court.




                                                    [AJIT B. KADETHANKAR, J.]
PRW