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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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