Bombay High Court
SUNANDA ASHOK JAIN AND ANOTHERversusSANJAYKUMAR MISHRILAL KASLIWAL AND OTHERS
- Disposal
- DISPOSED OFF
Holding
The amendment was rejected because it would alter the nature of the suit and the relief sought is already the subject of a pending partition suit.
Summary
The petitioners filed a writ petition challenging a civil court's order rejecting their application to amend the plaint of a suit for declaration and perpetual injunction to include a prayer for partition and separate possession. The amendment was sought after a temporary injunction was granted, and the petitioners argued that the additional prayer was necessary. The civil judge rejected the amendment, holding that it would change the nature of the suit and that a separate partition suit involving the same parties and property was already pending. The High Court affirmed this reasoning, noting that allowing the amendment would duplicate relief already sought in the other suit and alter the character of the original proceedings. Consequently, the writ petition was dismissed.
Issues considered
- Can a plaint be amended to add a prayer for partition and separate possession when the original suit is for declaration and perpetual injunction?
- Does the existence of a pending partition suit between the same parties preclude amendment of the original suit?
- Would such an amendment change the nature of the original suit?
Subjects
- Amendment of plaint
- Partition
- Civil Procedure Code
- Order VI Rule 17
- Declaration suit
- Perpetual injunction
- Writ petition
- Nature of suit
Judgment
2026:BHC-AUG:42143
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12082 OF 2026
SUNANDA ASHOK JAIN AND ANOTHER
VERSUS
SANJAYKUMAR MISHRILAL KASLIWAL AND OTHERS
...
Advocate for Petitioners : Mr. S.S. Khoche
h/f. Mr. Nimbalkar Sudarshan Dagduba
AGP for Respondent/s – State : Ms. Preeti Diggikar
…
CORAM : MANJUSHA DESHPANDE, J.
DATE : 09th SEPTEMBER, 2026
PER COURT :
1. The Petitioner is challenging the order passed below Exhibit
31 in RCS no. 122/2025 (Old no. 441/2024), passed by learned Civil
Judge, Senior Division, Gangapur, wherein the Application filed by the
Petitioner for amendment of plaint in Order VI Rule 17 of the Code of
Civil Procedure, has been rejected vide order dated 10.11.2025.
2. The Petitioner has instituted a suit seeking declaration,
cancellation of sale deed and perpetual injunction. The suit is contested
by the Respondents and it is submitted that during the pendency of the
suit, after the decision of temporary injunction Application, the Petitioner
realized that a prayer regarding partition and separate possession needs to
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be added. Therefore, Application has been filed by the Petitioner seeking
amendment in the prayer clause for partition and separate possession
along with the existing reliefs of declaration and inunction.
3. The Application filed by the Petitioner for amendment of
plaint was opposed by the Defendants, by way of say before the trial
Court.
4. I have gone through the order passed by the learned Civil
Judge, Senior Division, Gangapur, below Exhibit 31. The learned Judge
while passing the order has observed that the suit itself is for declaration
and perpetual injunction. Therefore, by incorporating the prayer for
partition, it would change the very nature of the suit. Therefore, the
proposed amendment cannot be allowed. It is also observed that the sister
of the Plaintiff has also instituted the suit for partition regarding the same
property and the suit is pending for adjudication before the Civil Judge,
Senior Division, Gangakhed.
5. In view of the suit for partition already pending in respect of
the same property, the relief for amending the prayer clause has been
rejected. I do not find any merit in the challenge to the order passed by
the Civil Judge, Senior Division, Gangakhed, since it is a reasoned order
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and considering that if the prayer would have been allowed, it could
change the very nature of the suit. It has been rightly rejected by the
learned Judge. Similarly, the learned Judge has also considered that the
relief which is sought to be incorporated in the prayer clause, is already a
subject matter of suit for partition i.e. pending between the same parties
regarding the same property. Therefore, the Application has been
rejected. There is no case for interference made out by the Petitioner.
6. The Writ Petition is dismissed.
( MANJUSHA DESHPANDE, J. )
SPC
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