Bombay High Court

USHA PATI ASHOK TEKMOGE AND ORSversusDEVRAJ PITA ANIL CHAVAN

Disposal: Allowed

Holding

The amendment was not permitted; the order allowing it was quashed.

Summary

The petitioners, who are the original defendants in a suit for specific performance of an oral contract, challenged a trial court order that permitted the respondent to amend the plaint by adding paragraphs 4A and 4B based on written correspondence. The amendment was sought after the parties had settled certain issues, and the petitioners argued that the new pleadings were inconsistent with the original claim and would deprive them of a valid defence. The court examined whether the respondent had satisfied the due‑diligence test required for amendment under the Civil Procedure Code and considered the Supreme Court’s decision in LIC of India v. Sanjeev Builders. It found that the amendment was unsupported by any explanation of lost papers, was inconsistent with the oral‑agreement narrative, and would prejudice the petitioners. Consequently, the court held that the trial court had erred in allowing the amendment. The writ petition was allowed, the impugned order was quashed, and the application to amend the plaint was rejected.

Issues considered

The amendment of the plaint after settlement of issues is permissible under the CPC.
Whether the respondent satisfied the test of due diligence for amendment of pleadings.
Whether the proposed amendment is inconsistent with the original pleadings and would prejudice the petitioners' defence.
Whether the trial court acted within its jurisdiction in allowing the amendment.

Legislation cited

Code of Civil Procedure, 1908 — s. Order VI Rule 17, Section 29

Subjects

specific performance
amendment of plaint
oral contract
due diligence
civil procedure
writ petition
jurisdiction
defence

Judgment

14744-2024-WP=.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 14744 OF 2024
Digitally
signed by
UDAY
1. Usha Patil Ashok Takmoge
UDAY SHIVAJI
SHIVAJI JAGTAP
2. Kunal Pita Ashok Takmoge
Date:
JAGTAP 2026.09.10
17:51:45
+0530 3. Dilip Pita Ashok Takmoge … Petitioners
Vs.
Devraj Pita Anil Chavan … Respondent
………….
Mr. Anand Kulkarni for the Petitioners
Mr. Prasad B. Kulkarni for the Respondent
………….
CORAM : SHAILESH P. BRAHME, J.

DATE : 8th SEPTEMBER, 2026.
FINAL ORDER :

. Heard both sides finally.

2. The petitioners take exception to the order dated 18.01.2024

passed below Exh.17 in Special Civil Suit No. 75 of 2021 thereby

allowing the respondent – plaintiff to amend the plaint. The petitioners

are the original defendants in the suit instituted by the respondent for

specific performance of contract.

3. The respondent submitted Application Exh.17 after settlement of

issues to incorporate paragraph nos. 4A, 4B in the plaint. It was allowed

by the impugned order. Hence, the petitioners have preferred this

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petition.

4. Learned Counsel Mr. Kulkarni, appearing for the petitioners

submits that the respondent has taken inconsistent stand by

incorporating the pleadings. The nature of the proceedings are going to

change. It is submitted that suit for specific performance of contract is

founded on oral agreement, which stand is reiterated in the subsequent

application preferred by the respondent before the trial Court. In order

to overcome the lacuna, a total contrary theory has been set out in the

proposed amendment. It is submitted that the petitioners will be

deprived of valid defence due to the impugned order. The explanation

stated in Application Exh.17 failed to satisfy test of due diligence. It is

contended that impugned order suffers from error of jurisdiction and

perversity.

5. Per contra, learned counsel for the respondent would submit that

trial Court has taken a reasonable view relying upon the judgment of the

Supreme Court in the case of Life Insurance Corporation of India Vs.

Sanjeev Builders Pvt. Ltd. & Anr. (2022) SCC Online SC 1128. It is

submitted that the nature of suit is not going to change. It is further

submitted that petitioners will also get an opportunity to counter the

pleadings. The trial Court is justified in adopting liberal approach which

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is necessary to decide the real controversy between the parties.

6. Admittedly, Application Exh.17 was submitted by the respondent

for amendment to plaint after settlement of issues. The plaint is founded

on oral transaction between the parties which took place in the year

2013. By way of proposed amendment, respondent wanted to

incorporate paragraph nos. 4A and 4B which refer to written

correspondence between the parties that took place on 26.07.2013.

Further transaction occurred on 12.12.2018 and 31.01.2019 are also

tried to be brought on record.

7. I find that the proposed pleadings and the original pleadings are

inconsistent. The reason given for seeking leave to amend the plaint is

the loss of papers at the time of filing of the suit. It is not made clear as

to when those papers are discovered. The respondent could have

pleaded that there was written correspondence or agreement between

the parties regarding alienation of the suit property. The reason given in

the Application Exh.17 is unacceptable. I find that the respondent has

failed to satisfy the test of due diligence.

8. My attention is adverted to applications made by respondent for

fixing the rent. In paragraph no.5, it has been stated that no written

agreement was ever executed between the parties due to relationship.

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The same stand is reiterated in paragraph no.6 of the application

preferred under Section 29. Thus, it is evident that the consistent case of

the respondents is that of oral agreement which is sought to be deviated

by the proposed amendment. The trial Court has not taken into account

this aspect of the matter.

9. Learned counsel for the respondents has relied upon the principles

laid down by the Supreme Court in LIC of India (supra). This Court is

bound by those principles. Due to the proposed amendment, the

petitioners are likely to lose a valid defence. I find that the impugned

order is unsustainable.

10. The Writ Petition is allowed. The impugned order dated

18.01.2024 is quashed and set aside. Application Exh.17 shall stand

rejected.

( SHAILESH P. BRAHME, J. )

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