Kunda Ambadas Hanumante and anrversusAnil Maruti Raut and anr

2026:BHC-AS:37828

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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION
                                 WRIT PETITION NO.11853 OF 2026

            Kunda Ambadas Hanumante and Anr.                   ...   Petitioners
                  versus
            Anil Maruti Raut and Anr.                          …     Respondents

            Mr. Sachin Pawar i/by Mr. Tejas Mane, for Petitioners.

                                CORAM:      N.J.JAMADAR, J.

                                DATE :      11 SEPTEMBER 2026

            ORDER :

            1.      Heard the learned Counsel for the Petitioners.

            2.      The challenge in this Petition is to the orders dated 30 September 2025

            passed by the learned Civil Judge, Indapur, whereby the applications

            (Exhs.78 and 89) preferred by the Petitioners – Plaintiffs for amendment in the

            plaint, came to be rejected.

            3.      In the year 2011, the Petitioners – Plaintiffs instituted a suit seeking

            declaration that the registered agreement for sale dated 29 January 1996

            executed by the Plaintiffs in favour of the Defendants be cancelled and for

            recovery of possession of the suit land purportedly agreed to be sold to the

            Defendants thereunder and for injunctive reliefs. The Plaintiffs claimed that

            the said registered agreement for sale was a subterfuge for the money

            lending transaction. The Defendants had, in fact, illegally lent money to the

            Plaintiffs at exorbitant rate of interest and despite the repayment of the loan,


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the Defendants refused to cancel the instrument and deliver the possession of

the suit land.

4.    The Defendants resisted the suit. Issues were settled on 9 January

2012. The Plaintiffs filed affidavit in lieu of examination in chief. While the

suit was posted for recording the cross-examination of the Plaintiffs’ witness,

the Plaintiffs filed an application (Exh.78) seeking amendment in the plaint to

assert the purported illegality of the transaction and also implead the

daughters of Plaintiff No.1 as parties to the suit, asserting that the release

deed executed by the daughters of Plaintiff No.1 in favour of the Plaintiffs was

null and void.

5.    During the pendency of the said application, the Plaintiffs took out

another application (Exh.89) seeking further amendment in the plaint so as to

bring on record the instruments allegedly obtained by the predecessor in title

of the Defendants from other persons in connection with the illegal money

lending business and implead those persons as party Defendants to the suit.

6.    By the impugned orders, the learned Civil Judge was persuaded to

reject both the applications as the interdict contained in the proviso to Order

VI Rule 17 of the Code of Civil Procedure, 1908, was attracted, and, even

otherwise, the proposed amendments were not necessary for the

determination of the real question in controversy between the parties. Nor the

proposed Defendants were either necessary or proper parties to the suit.


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7.       Mr. Pawar, learned Counsel for the Petitioners, submitted that the

learned Civil Judge exercised the jurisdiction in dissonance with the settled

principles of law in the matter of amendment in the pleadings. Corrections in

the date of the agreement for sale and the impleadment of the daughters of

Plaintiff No.1, were essential for a just decision of the case.        Even the

subsequent application for amendment (Exh.89) could not have been rejected

by the learned Civil Judge as the proposed amendment was in amplification

of the pleaded case of the Plaintiffs that the Defendants were engaged in

illegal money lending business and the agreement for sale was a ruse for the

real transaction between the parties.

8.       I am unable to persuade myself to agree with the submissions of Mr.

Pawar. At the outset, it is necessary to note that, it could not be controverted

that the trial had commenced, in as much as the issues were settled in the

year 2012 and the Plaintiffs had filed their evidence and at the stage of the

cross-examination of the Plaintiff’s witness, applications for amendment were

filed.

9.       This Court was anxious to know whether the Plaintiffs have made out

any case for permitting the amendment despite commencement of the trial. It

is pertinent to note that, in the first application for amendment (Exh.78), no

reason     was   ascribed   for   not   seeking   the   amendment    before    the

commencement of the trial.        It was simply mentioned that, in view of the


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change in the legal position and to remove the technical defects, amendment

was required to be made in the plaint.        It does not appear that any reason,

much less one that satisfies the test of due diligence was ascribed.

10.     Second application (Exh.89) also suffered from the same infirmity. It

was simply mentioned that, certain amendments were required to be made in

the plaint in the interest of justice. It is fairly crystalized that, the satisfaction

of the Court that in spite of due diligence, a party seeking amendment could

not have raised the matter before the commencement of the trial is the

jurisdictional fact and, in the absence thereof, the Court cannot exercise

discretion to permit amendment in the pleading post the commencement of

the trial. (Vidyabai And Ors Vs Padmalatha & Anr.)1

11.     Even on the merits, this Court finds that the learned Civil Judge was

justified in rejecting both the applications. First application was in the nature

of assertion of an inconsistent plea in as much as the Plaintiffs professed to

withdraw the admission that the daughters of Defendants No.1 had

relinquished their right, title and interest in the suit property in favour of the

Plaintiffs under a release deed dated 3 October 1993 and seek a declaration

that the said registered release deed was illegal and void. The proposed

amendment would, thus, fall foul of the principle of potentiality of prejudice.

12.     The amendment sought to be introduced by the application (Exh.89)


1   (2009) 2 SCC 409

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                      was rightly held by the learned Civil Judge to be not necessary for the

                      determination of the real question in controversy, as by the said amendment

                      the Plaintiffs intended to bring on record the instruments which were obtained

                      by the predecessor in title of the Defendants in pursuance of the purported

                      illegal money lending transactions with the third parties and implead those

                      parties as parties to the instant suit. The learned Civil Judge was justified in

                      holding that, at best, that was a matter of evidence which was not required to

                      be pleaded.

                      13.      Looked at from any perspective, this Court does not find any infirmity in

                      the impugned orders.

                      14.      Resultantly, the Writ Petition stands dismissed.




                                                                           ( N.J.JAMADAR, J. )




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Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 16/09/2026 19:52:35