Bombay High Court
KESHARCHAND BHILAJI DUBELEversusSURESH RAGHUNATH KHANDRE
- Disposal
- DISPOSED OFF
Holding
The amendment of the plaint to correct the encroachment area, rectify the title description, and incorporate prior transaction details does not change the nature of the suit and, lacking prejudice, must be allowed.
Summary
The petitioners, who are adjacent landholders, filed a civil suit alleging that the defendants had encroached upon their property. After a Court Commissioner’s survey, the plaintiffs sought to amend the plaint to (i) correct the measured area of encroachment, (ii) rectify a typographical error describing the land as ‘ancestral’, and (iii) insert details of earlier transactions among the erstwhile owners. The defendants opposed the amendment, arguing that it was delayed and would change the nature of the suit. The trial court rejected the amendment, prompting the petitioners to invoke the High Court’s supervisory jurisdiction under Article 227. The High Court held that the proposed amendments are merely corrective and do not affect the substantive rights of the defendants, and that no serious prejudice arises from the delay, thus allowing the amendment and quashing the trial court’s order.
Issues considered
- Whether an amendment to correct the area of encroachment, the description of title, and the inclusion of prior transactions alters the nature of the suit.
- Whether the amendment can be permitted despite the delay and alleged prejudice to the defendants.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order VI Rule 17, Order XXVI Rule 9
- Constitution of India — s. Article 227
Subjects
- land encroachment
- amendment of plaint
- civil procedure
- adjacent landholders
- Article 227
- delay
- correction of title
Judgment
2026:BHC-AUG:43179
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
22 WRIT PETITION NO. 4008 OF 2024
KESHARCHAND BHILAJI DUBELE DIED THROUGH LRS
SEETARAM AND OTHERS
VERSUS
SURESH RAGHUNATH KHANDRE DIED THROUGH LRS
MAHESH AND OTHERS
...
Mr. S. S. Naik, Advocate for the Petitioners
Mr. A. K. Shingare, Advocate for Respondent Nos.1A to 1D, 2A
to 2D, 3 and 4
…
CORAM : AJIT B. KADETHANKAR, J.
DATED : 21st September 2026
P.C. :-
. Feeling aggrieved by the order dated 08.11.2023 passed
by the learned 5th Civil Judge, Junior Division, Aurangabad in
Regular Civil Suit No.10 of 2006 on an application below
Exhibit 59, the petitioners are before this Court. An
application under Order VI Rule 17 of the Code of Civil
Procedure came to be filed by the petitioners/original
plaintiffs seeking certain modification in the Exhibit 1.
2. The sum and substance of the suit is that the plaintiffs
and the defendants are adjacent landholders by virtue of
certain registered sale deeds. The plaintiffs acquired title in
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the suit property and became owner and possessor of the
same. It is further the contention of the plaintiffs that during
the course of time, the defendants have encroached upon
certain portion of the suit property, which constrained them to
file the suit.
3. In the suit, an application under Order XXVI Rule 9 of
the Code of Civil Procedure came to be filed at the behest of
the defendants seeking appointment of Court Commissioner to
admeasure the land and place the same on record before the
Court. The said application was allowed. The Court
Commissioner was appointed and the report is placed before
the Court. Both the parties have filed their respective short
pursis thereby accepting the report, however, reserving their
right to controvert the contents of the report.
4. The plaintiffs revealed that the portion of encroachment
was noticeable a bit larger than what was claimed in the
plaint. In view of that by the application Exhibit 59, an
amendment was sought for modification of the area of
encroachment and the possession as sought in the suit.
5. In the application, two more factors were mentioned.
Although the plaintiffs have acquired title to the suit property
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by virtue of registered sale deeds, by inadvertence or
typographical mistake, it was mentioned that the suit property
is their ancestral land. Hence, correction to that effect in the
plaint was also sought in the application Exhibit 59.
6. The second factor for the amendment was that the
description of diversion of the interest in the suit property
pertaining to the erstwhile owner of the plaintiffs was sought
to be explained. Some other amendment was sought to
incorporate a few lines whereby the property transaction
amongst the erstwhile owners was sought to be incorporated.
7. This application was vehemently opposed by the other
side i.e. the defendants. Obviously, the objection was on
account of delay as also that the amendment was to change
the nature of the suit. It was also sought to be submitted that
the case was not one where the petitioners i.e. plaintiffs could
not cure the defect in the plaint even after exercise of due
diligence.
8. After hearing both the parties, the trial Court was
pleased to turn down the application by order dated
08.11.2023 which is impugned in the present petition.
9. Heard both the sides.
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10. Mr. S. S. Naik, learned Advocate for the petitioners
plaintiffs stood by his application Exhibit 59. Mr. A. K.
Shingare, learned Advocate for the defendants/respondents
advocated the findings recorded by the trial Court.
11. With the able assistance of both the learned Advocates
for the respective parties, I have perused the case papers.
12. The very material fact of controversy is that both parties
are adjacent landholders to each other. Apparently, the
defendants have no interest in petitioners’ property, being its
owner or a person having interest in the title over the suit
property.
13. So far as the amendment sought in the area under
encroachment is concerned, apparently such amendment, if
allowed, shall not change the nature of the suit. In view of the
report placed by the Court Commissioner, the plaintiffs have
sought such modification. This is a consequential amendment
which does not touch the merits of the other party in the suit.
Hence, I find that the amendment for correcting the area of
encroachment needs to be allowed.
14. So far as other amendments are concerned, it is a
matter of fact that the defendants have even given reference
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to the sale deeds by which the plaintiffs have acquired
ownership and possession over the suit properties. There is no
dispute as to the title of the plaintiffs.
15. As I observed above, the relation of the parties plays a
vital role while deciding such application. The issue before the
trial Court is in respect of encroachment by the defendants on
the suit property. In view of this, if the plaintiffs contend that
the source of title was mistakenly displayed as an ancestral
mode, the same can be corrected by permitting the
amendment as is prayed for.
16. Same is the case in respect of the explanation about the
property transaction amongst the erstwhile owners, being
relatives of the erstwhile owner. This amendment, if allowed
in the peculiar circumstances, will not change the nature of
the suit.
17. Suffice to note, the amendment is challenged after
much delay. However, in order to deny an amendment on the
count of delay, it has to be seen whether the amendment
causes any serious prejudice to the defence raised by the
defendants. Such is not the case in the case in hand.
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18. In view of this, I find that the petitioners have made out
a case to call for interference of this Court under Article 227
of the Constitution of India. Hence, I pass the following order:
ORDER
I. The Writ Petition is allowed subject to
payment of costs of Rs.10,000/- (Rupees Ten
Thousand only), to be deposited in the trial
Court in the suit, considering the delay caused
by the petitioners/plaintiffs in filing the
application seeking amendment on the point of
correction of their source of title and
explanation as recorded above.
II. The order dated 08.11.2023 passed by the
learned 5th Civil Judge, Junior Division,
Aurangabad in Regular Civil Suit No.10 of 2006
is quashed and set aside.
III. The application Exhibit 59 stands allowed.
IV. The plaintiffs shall carry out the
amendment within a period of four weeks from
today by giving a copy of the amended plaint to
the other side.
V. The Writ Petition stands disposed of.
( AJIT B. KADETHANKAR, J. )
PRW
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