PRALHAD DNYANOBA RENGEversusVITTHAL DNYANOBA RENGE DIED THR LRS SUSHILABAI V RENGE AND OTHERS

2026:BHC-AUG:44252


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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                              WRIT PETITION NO. 12047 OF 2026

                     Pralhad S/o. Dnyanoba Renge
                     Age. 64 years, Occ. Service & Agriculture,
                     R/o. Ganesh Nagar, Dargah Road, Parbhani,
                     Taluka and District Parbhani.                    ...Petitioner

                           Versus

              1.     Vitthal S/o. Dnyanoba Renge (Died)
                     Through his Legal Representatives

              1/1.   Smt. Sushilabai W/o. Vitthalrao Renge,
                     Age. 65 years, Occ. Household,
                     R/o. At village Jamb, Tq. And Dist. Parbhani.

              1/2.   Yamuna W/o. Rajesh Kantule
                     Age. 35 years, Occ. Household,
                     R/o. At village Kumbhar Pimpalgaon,
                     Tq. Ghansawangi, Dist. Jalna.

              2.     Mohan S/o. Vithalrao Renge,
                     Age. 43 years, Occ. Agri.,

              3.     Satish S/o. Vithalrao Renge,
                     Age. 41 years, Occ. Agri.,

              4.     Dnyanoba S/o. Vithalrao Renge,
                     Age. 40 years, Occ. Agri.,

              5.     Salubai W/o. Vithalrao Renge,
                     (Died and deleted before the Ld. Trial Court)

              6.     Pushpabai W/o. Pralhad Renge,
                     Age. 57 years, Occ. Household,

              7.     Vashishta W/o. Pralhad Renge,
                     Age. 39 years, Occ. Service/Agri.,
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8.    Pravin S/o. Pralhad Renge,
      Age. 36 years, Occ. Service/Agri.,

9.    Mahesh S/o. Pralhad Renge,
      Age. 34 years, Occ. Service/Agri.,

10.   Sou. Saraswati @ Sarubai W/o. Dattarao Samale,
      Age. Major, Occ. Household,
      R/o. Takli (Kumbhkarn), Tq. & Dist. Parbhani,

11.   Suman @ Rukminibai W/o. Sheshrao Kadam
      Age. Major, Occ. Household,
      R/o. Kadam Galli, Purna,
      Tq. Purna, Dist. Parbhani.

12.   Sou. Ratanbai @ Ratnamala W/o. Shivaji Solanke
      Age. Major, Occ. Household,
      R/o. Sadola, Tq. Majalgaon, Dist. Beed.

13.  Kamal W/o. Nayab Sarate
     Age. Major, Occ. Household,
     R/o. Wazur (Ranjni Station),
     Tq. Partur, Dist. Jalna.                         ...Respondents.
                                    …
Advocate for Petitioner : Mr. S.K. Chavan
Advocate for Respondent No. 3 : Mr. M.M. Patil (Beedkar)
                                    …
                          CORAM : MANJUSHA DESHPANDE, J.
                          DATE : 29th SEPTEMBER, 2026

JUDGMENT :

1.           Rule. Rule made returnable forthwith and heard finally with

the consent of the parties.


2.           Heard learned Advocate Mr. S.K. Chavan, for the petitioner

and learned Advocate Mr. M.M. Patil (Beedkar), for Respondent No. 3.
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3.           The petitioner is assailing the order below Exhibit 292 dated

30th July 2026 passed by the Joint Civil Judge, Senior Division,

Parbhani, allowing the application filed by the respondents under Order 6

Rule 17 of the Code of Civil Procedure, seeking to add Plot No. 34 into

the title clause and prayer clause. The application for amendment has

been allowed by the learned Civil Judge, Senior Division, Parbhani, after

the trial has commenced, without there being any explanation by the

respondents for the delay in making the application for amendment in the

plaint. The petitioner submits that the petitioner is the original Defendant

No. 1 in R.C.S. No. 252 of 2007 filed by Respondent Nos. 1 to 5, who

are the original plaintiffs, seeking partition and separate possession of

half share against the petitioner and Respondent Nos. 6 and 7 in respect

of 10 agricultural lands and two house properties which are outlined in

the plaint, claiming it to be joint family properties. The written statement

was filed denying the status of joint family property, contending that oral

partition had already taken place in the year 1984. The defence was also

raised on the ground that the plaintiff has suppressed certain properties

purchased by him in different names.


4.           Learned Advocate Mr. S.K. Chavan, submits that in the

plaint there is an averment that, the respondents had purchased a plot at
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Ganesh Nagar, Parbhani, which is a joint family property on which he has

constructed a bungalow. The status of that property is also claimed as

joint family property, but in spite of making averments about joint family

property, he has not sought relief against that property and it is not

included in the suit. However, the respondents had reserved their rights to

add the said property in the suit once they receive the information about

the said property.


5.           He submits that in the written statement filed by the

petitioner, in response to the said averment, it is denied by the present

petitioner that, it was a joint family property and claimed that he has

purchased it from his own income. He submits that the written statement

was filed on 9th April 2008. After that, the petitioner has produced the

certified copy of the sale deed of Plot No. 34, Dargah Road, Parbhani,

along with the list of documents at Exhibit 68, on record. He further

submits that the document was already part of the record in the year 2010

itself, thus, the respondents could have carried out the necessary

amendment in the year 2010. However, the respondents have not filed

any application seeking amendment at that time.


6.           In fact, the respondents have filed their evidence close pursis

on 29th June 2010.He submits that after 2010, for a prolonged period, the
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respondents have not taken any steps to file any application. It is

submitted that the respondents have amended the suit twice in the year

2017 and in the year 2022, respectively, as such the respondents could

have filed the application for amendment on both the occasions, which

they have failed.


7.           The respondents have failed to show due diligence for the

delay in making the application for amendment. It is submitted that no

explanation has been given for the delay of 16 years in making the

application by the respondents. It is settled that when an application is

filed under Order 6 Rule 17 of the C.P.C., post trial amendment cannot be

allowed unless the Court records a positive finding that despite due

diligence the party could not have raised the matter before

commencement of trial. The learned Judge of the trial court has failed to

record a specific finding about reasons for failure to observe due

diligence by the respondents. The delay of 16 years is not appropriately

explained. Therefore, the impugned order becomes unsustainable. In case

of Pandit Malhari Mahale Versus Monika Vikram Joshi, (2020) 11 SCC 549

and Vidyabai and Others Versus Padmalatha and Another, (2009) 2 SCC

409, it is held that in absence of a finding of due diligence, the Court

lacks jurisdiction to allow post-trial amendments. The trial court has
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erred in relying on the decision in case of Rajbahadur Jiyaram Yadav

Versus Prakash @ Pappu Jiyaram yadav and Others, 2016 (2) Mh.L.J. 639 ,

to allow the application for amendment of plaint.


8.           According to the learned Advocate, generic observations

regarding liberal approach for suits cannot override the mandate of Order

VI Rule 17.He submits that there is no explanation given by the

respondent for failure to make such an application seeking amendment,

in spite of the fact that the document on the basis of which he is seeking

amendment was already placed on record by him in the year 2010 itself.

It is submitted that by allowing such amendment after 19 years would

cause grave prejudice to the petitioner by reopening the trial, requiring

framing of fresh issues and leading evidence. By making amendment in

the plaint, the plaintiff is trying to fill up the lacuna / overcome the

admissions given in the cross-examination which was concluded by filing

evidence close pursis on 29th June, 2010, itself. He submits that the order

passed by the Civil Judge, Senior Division, Parbhani, is in total breach of

the conditions mentioned in Order 6 Rule 17 of the Code of Civil

Procedure. He has relied on the judgments in case of Vidyabai and Others

(supra) and J. Samuel and others Versus Gattu Mahesh and Others, (2012)

2 SCC 300, which clearly hold that if a party fails to satisfy the Court
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about due diligence, amendment post commencement of trial is barred.

Reliance is placed on the decision in case of Chitra and Another and C.

Natarajan, 2026 INSC 781, wherein the Hon'ble Supreme Court has held

that carelessness and negligence of the party cannot be tolerated under

the garb of liberal approach. Due diligence under the proviso relating to

amendments, even if crucial, cannot be allowed. In view of the settled

legal position which can be reflected from the judicial pronouncements of

the Hon'ble Supreme Court, it is imperative that the amendment

application post trial can be allowed, only in exceptional circumstances,

when the applicant proves that in spite of due diligence it was beyond his

control to act promptly by making necessary amendment.


9.          Per contra, learned Advocate Mr. M.M. Patil (Beedkar),

appearing for Respondent No. 3, has opposed the admission of the writ

petition, contending that the respondents are mainly seeking to

incorporate the details of the house property, that is Plot No. 34 out of

Survey No. 581/2A and 2B situated at Dargah Road, Parbhani, in the title

clause and prayer clause of the suit. He would submit that the

respondents are not introducing an altogether new case by way of

amendment, but are only seeking permission to give the details of the

property which is already mentioned in the plaint at Paragraph No. 4. The
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property is already described, and in the plaint itself it is stated that they

are reserving their right to add the property in the suit, upon receiving the

necessary details. He submits that although the petitioner had filed the

details of the document in his written statement and the certified copy of

the document itself in the year 2010, he could not make the necessary

amendment due to pendency of the two writ petitions filed by the

petitioner, that is Writ Petition No. 10739 of 2012 and Writ Petition No.

10670 of 2017 in this Court. It is only after the judgment and order has

been passed in Writ Petition No. 10670 of 2017 on 21st October 2022

and the suit was listed before the trial court, the respondents submitted an

application at Exhibit 292 seeking addition of Plot No. 34 out of Survey

No. 581/2A and 2B situated at Dargah Road, Parbhani, to be included in

the title as well as in the prayer of the suit. He submits that at the time of

filing of the suit he could not collect the documentary evidence of the

property. The petitioner has exhibited Plot No. 34 at Exhibit 77 and it is

only expected by the Court that the cause of action to move an

application for adding the suit property accrued only after exhibiting the

said document. The suit has been filed for partition and separate

possession of the joint family properties, therefore all the properties that

form part of the joint family property are required to be included in the

suit for partition. Only after including the property in the suit, it would be
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decided by leading evidence whether or not it forms part of the joint

family property. Thus, by including this property in the suit, the nature of

the suit is not going to change in any manner. Therefore, no prejudice is

going to be caused to the other side.


10.          He submits that after passing of the impugned order, the suit

has proceeded. The petitioner has also filed an additional written

statement. It is submitted that the petitioner is unnecessarily prolonging

the suit and protracting the litigation. In fact, this Court while passing

order dated 28.04.2016, in Writ Petition No. 10739 of 2012,itself had

expedited the trial of the suit with a direction to dispose it within a period

of 8 months. Even in Writ Petition No. 10670 of 2017, this Court vide

order dated 21st January 2022 has also issued directions to decide the suit

within a period of 4 months from the date of order. Irrespective of the

various orders passed by this Court, the suit is being prolonged by the

petitioner on one or the other count. He has placed reliance on the

decision of the Hon'ble Supreme Court in case of Dinesh Goyal @ Pappu

Vs. Suman Agarwal (Bindal) and others, decided by order dated 24th

September 2024. The Hon'ble Supreme Court, relying on the previous

decisions of the Hon'ble Supreme Court itself, has carved out certain

principles which are guiding factors while deciding amendment of
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pleadings. According to the learned Advocate for the respondents, his

case would clearly fit in the guiding principles stated in paragraph No.

11.2 of the said decision :

             “11.2 Over the years, through numerous judicial precedents
             certain factors have been outlined for the application of
             Order VI Rule 17. Recently, this Court in Life Insurance
             Corporation of India v. Sanjeev Builders Pvt. Ltd. & Anr.7,
             after considering numerous precedents in regard to the
             amendment of pleadings, culled out certain principles:-
             (i) All amendments are to be allowed which are
             necessary for determining the real question in
             controversy provided it does not cause injustice or
             prejudice to the other side. This is mandatory, as is
             apparent from the use of the word “shall”, in the latter
             part of Order VI Rule 17 of the CPC.

             (ii) In the following scenario such applications should
             be ordinarily allowed if the amendment is for effective
             and proper adjudication of the controversy between the
             parties to avoid multiplicity of proceedings, provided it
             does not result in injustice to the other side.

             (iii) Amendments, while generally should be allowed,
             the same should be disallowed if -

             (a) By the amendment, the parties seeking amendment
             does not seek to withdraw any clear admission made by
             the party which confers a right on the other side.
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             (b) The amendment does not raise a time-barred claim,
             resulting in the divesting of the other side of a valuable
             accrued right (in certain situations)

             (c) The amendment completely changes the nature of
             the suit;

             (d) The prayer for amendment is malafide,

             (e) By the amendment, the other side should not lose a
             valid defence.

             (iv) Some general principles to be kept in mind are –
             (I) The court should avoid a hyper-technical approach;
             ordinarily be liberal, especially when the opposite
             party can be compensated by costs.

             (II) Amendment may be justifiably allowed where it is
             intended to rectify the absence of material particulars in the
             plaint or introduce an additional or a new approach.

             (III) The amendment should not change the cause of action,
             so as to set up an entirely new case, foreign to the case set
             up in the plaint.”

11.          It is his prayer that in view of the decision of the Hon'ble

Supreme Court which holds that amendment of pleadings are to be

allowed which are necessary for determining the real questions in

controversy, provided it does not cause injustice or prejudice to the other
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side, his application is to be allowed for effective adjudication of

controversy between the parties to avoid multiplicity of proceedings. He

submits that in view of the settled legal position, the impugned order

does not deserve any interference and the petition deserves to be

dismissed.


12.          After hearing the respective parties and going through the

documents, the subject matter of petition falls within the narrow compass

of Order VI Rule 17 of the C.P.C, the same is reproduced below for

convenience which read thus :

             “17. Amendment of pleadings.
             The Court may at any stage of the proceedings allow
             either party to alter or amend his pleadings in such
             manner and on such terms as may be just, and all such
             amendments shall be made as may be necessary for the
             purpose   of   determining   the    real   questions   in
             controversy between the parties :


             Provided that no application for amendment shall be
             allowed after the trial has commenced, unless the Court
             comes to the conclusion that in spite of due diligence,
             the party could not have raised the matter before the
             commencement of trial.”
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13.          The few admitted facts which are not disputed by either of

the parties are that:Suit is filed on 9th October 2007 by Respondent Nos.

1 to 5 for partition and separate possession. In the plaint it is averred that

there is a property at Ganesh Nagar, Parbhani, which is the joint family

property with a bungalow constructed thereon, of which necessary

information and details are not available with the plaintiffs, who seek

relief to add the details of the property in suit if the same would become

available to them. The written statement is filed by the defendant on 9th

April 2008, denying the claim of the plaintiffs that the property at Ganesh

Nagar was joint family property. The certified copy of the sale deed of

the said property was placed on record in the year 2010, evidence close

pursis is filed on 29th June 2010. Twice, in the year 2017 as well as 2022,

the plaint has been amended. The application seeking amendment for the

plaint has been filed by the respondent at Exhibit 292 on 23rd July 2026

with a prayer that they may be permitted to add property that is Plot No.

34 out of Survey No. 581/2A-2B situated at Dargah Road, Parbhani, in

the prayer clause and title clause. The application was opposed by filing

say by the petitioner herein. The same was filed on 27th July 2026 and

the Order below Exhibit 292 was passed on 30th July 2026.


14.          From the aforementioned undisputed dates and facts, it is
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evident that there is a huge gap between the amendment made by the

respondents in the year 2017 and the application filed by them in the year

2026. So far as Order 6 Rule 17 of the C.P.C. is concerned, it is divided

into two parts. The Court is allowed to amend the pleadings at any stage

and in any manner on such terms and conditions as may be just, in case

such that are amendment is necessary for the purpose of determining the

real questions in controversy between the parties. Thus the first part of

the provision for amendment of pleadings, clearly provides that

amendment can be allowed by the Court at any stage of the proceeding to

either of the parties for determining the real issue or controversy between

the parties. The proviso limits the powers of the Court to allow such

application after the trial has commenced. Application for amendment

after commencement of trial requires the applicant to satisfy the Court

that, in spite of due diligence the party could not raise the issue before the

commencement of trial. In case of Vidyabai and others (supra), the

question as to what would amount to commencement of trial has been

clarified by the Hon'ble Supreme Court by holding that, the trial is

deemed to commence when the issues are framed and the case is set for

recording of evidence. Undisputedly in the present case the trial has

commenced and even the evidence of plaintiff, (present respondents) is

complete and evidence close pursis has also been filed. Therefore, it was
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imperative for them to demonstrate that in spite of due diligence the

applicant could not file the application, seeking amendment to the plaint.

Upon going through the application at Exhibit 292, the only grounds

mentioned by the applicant are that, although their evidence is complete

and the Court has exhibited the ‘sale deed’, which is a public document,

therefore cause of action to file application has arisen only after

exhibiting the ‘sale deed’. It is also stated that in the written statement the

defendant had denied that it is a joint family property, and addition of

said property to the suit would not cause any prejudice to the present

petitioner, since the property was already mentioned in the plaint, it

would not give rise to new cause of action and it would not change the

nature of suit, as such would cause no prejudice to the petitioner.

Although it is not pleaded in the application, but the learned Advocate for

the respondents during the course of arguments submitted that the

application for amendment could not be filed previously due to the stay

that was operating to the suit from the year 2012 to the year 2016. Writ

Petition No. 10739 of 2012 pending before this Court was decided vide

order dated 28th April 2016, during which the suit remained stayed for a

period of 4 years. And Writ Petition No. 10670 of 2017 which is decided

along with Writ Petition No. 1322 of 2017, the stay was operating till the

aforesaid petitions were decided on 21st January 2026. Therefore,
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according to the respondent, from the year 2012 to 2026, barring period

of few months between 2016 and 2017, there was a stay to the Regular

Civil Suit No. 252 of 2007, during which it was not possible for the

respondents herein to file the application seeking amendment. This

position is not disputed by the learned Advocate for the petitioner. On the

aforesaid background, I am constrained to fall back on the decision of the

Hon'ble Supreme Court in Dinesh Goyal @ Pappu (supra), wherein the

Hon'ble Supreme Court has taken into consideration all the landmark

decisions governing Order 6 Rule 17 of the C.P.C. after the amendment

to the section in the year 2002.The Hon'ble Supreme Court has held that

it is a settled rule that the Court should adopt a liberal approach in

granting amendment of pleadings, but it cannot be in contravention of the

statutory boundaries placed on such power. Referring to another decision

in case of North Eastern Railway Administration, Gorakhpur Versus

Bhagwan Das, (2008) 8 SCC 511, the Hon’ble Supreme Court has

observed that the amendments are to be allowed, when it satisfies two

conditions: No. 1 of not causing injustice to the other side, and No. 2 of

being necessary for determining the real question in controversy between

the parties. Applying the aforesaid two conditions to the present case, in

my view, by adding the details of the property, which already forms part

of the averments made in the plaint, would not in any way cause any
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prejudice to the petitioner, since the petitioner would always have the

liberty to cross-examine the witnesses on the amended issue. Similarly, it

is also important to include the details of the suit property in the suit for

the reason that this suit being for partition of the properties that are

claimed to be joint family properties, are required to be brought into a

common hotch-pot of Respondent no. 2. Whether it is joint family

property or self-acquired property would be a matter of evidence led by

the parties. Thus, by incorporating details of a property, which is already

mentioned in the plaint, it is not going to cause any prejudice to the

petitioner.


15.           Reliance can also be placed on the judgment in case of Life

Insurance Corporation of India Versus Sanjeev Builders Pvt. Ltd and

Another, 2022 SCC OnLine SC 1128, where the Hon’ble Supreme Court

has reiterated that the Courts should avoid hyper-technical approach and

should ordinarily allow amendments, that can be compensated by costs, if

such amendment does not introduce a new ground or new approach and

such amendment does not change the nature and cause of action of the

suit.


16.           Applying these principles to the present case, I do not find

that any prejudice would be caused to the petitioner on account of
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allowing the amendment only to the extent of incorporating the details of

the sale deed i.e. already referred to in the plaint. In fact, if the

amendment is not allowed, the respondent will be permanently precluded

from claiming partition of the said property in view of the bar under

Order II Rule 2 of the CPC. Therefore, it is necessary to bring all the

properties into the common hotch-pot, and if such property which is

claimed to be a joint family property is brought into hotch-pot, it would

not change the nature of suit. So far as due diligence is concerned, the

learned Advocate for respondent no. 3, has already submitted that, there

was a stay operating during the major part of the intervening period

which was vacated only in the year 2026, which forms part of record,

hence requirement of due diligence will not apply to the facts of the

present case.


17.             Thus, in my opinion, the delay occurred in filing the

application for amendment stands substantiated from the record itself. In

the result, the writ petition is dismissed and Rule is discharged.




                                       ( MANJUSHA DESHPANDE, J. )


SPC