ASHOK SAMBHU ALIAS SAMBHAJI PANCHAL AND OTHERSversusSHAMBHU ALIAS SAMBHAJI RAMKRUSHNA PANCHAL AND OTHERS

2026:BHC-AUG:42811



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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                                  WRIT PETITION NO. 4419 OF 2024

            Ashok s/o. Sambhu @ Sambhaji Panchal,
            Age 26 Years, Occ. Education,
            r/o. Bhavthana, Taluka Ambajogai,
            Dist. Beed and four others                                      ..Petitioners

                     Vs.

            Sambhu @ Sambhaji s/o. Ramkrushna Panchal,
            Age : 35 Years, Occ. Agri. and Labour,
            r/o. Bhavthana, Taluka Ambajogai,
            Dist.Beed and three others                                     ..Respondents

                                              ----
            Mr.S.V.Hange, Advocate for petitioners
            Mr.M.P.Kale, Advocate for respondent nos.2 to 4
                                              ----

                                          CORAM :       AJIT B. KADETHANKAR, J.
                                          DATE  :       SEPTEMBER 15, 2026

            PER COURT :-

                             Heard learned advocates for the parties extensively.

            Considering the short controversy before this court, I have heard

            learned advocates for both sides for final disposal of the petition.



            2.               The petitioners are at the risk to satisfy the test of due

            diligence at this juncture in the suit seeking amendment in the

            pleadings by incorporating certain parties as party defendants. Suffice

            it to note, Regular Civil Suit No.385 of 2012 is filed by the petitioners
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against the present respondents with three prominent prayers.             The

petitioners sought partition in the suit property claiming 1/6 th       share

and sought possession of the same. Besides this, they also sought

declaration of nullity in respect of the sale deeds executed by the

defendants in favour of the third parties.



3.           The petitioners in their pleadings at paragraphs 7 to 9 has

given the details of the sale deeds of which they have                sought

cancellation. The names of the persons in whose favour the sale deeds

were executed were also mentioned in the pleadings.



4.           The defendants appeared in the suit and disputed the claim

on all counts. At paragraph 24 of written statement, specific objection

is raised by the defendants for not adding the necessary parties i.e.

vendees under the sale deeds of which declaration is sought by the

petitioners/plaintiffs.



5.           Subsequently, issues were framed by the trial Court on

20.06.2017. Issue no.3 is framed calling upon the plaintiffs to prove

that the defendant no.1 executed nominal sale deeds of suit property

in favour of the third party.
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6.          Thereafter, while the evidence was opened, on 01.02.2024

the plaintiffs filed an application under Order I Rule 10 of the Code of

Civil Procedure seeking to add seven persons as party defendants. The

substance of the application is that these are the persons who are the

vendees under the sale deeds which are under challenge in the suit.

The said application was opposed by the present respondents.


7.           After hearing both the parties, the trial court pleased to

reject application Exh.138 vide order dated 12.03.2024 which is

impugned in the present petition.


8.          Mr.S.V.Hange, learned advocate for the petitioners would

submit that the petitioners have already given reference of those third

parties in their pleadings and it cannot be said that all of a sudden the

application is filed. He also submits that the issue of limitation will also

not come in way since there is already prayer seeking cancellation of

the sale deeds executed in favour of the            proposed defendants.

Mr.Hange concludes his argument by submitting that the third parties

i.e. proposed defendants are necessary parties and hence the trial

court ought to have allowed the application.


9.          Mr.M.P.Kale, learned advocate for respondent nos.2 to 4

would stand by the order passed by the trial court and would support
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the reasoning rendered by the it. He would submit that the application

Exh.138 was filed at least 15 years after the limitation period is over.

Contending that the application Exh.138 is nothing but the abuse of

process, Mr.Kale prays to dismiss this petition.


10.         Considered       the   submissions     advanced      by     learned

advocates for the parties.


11.         Apparently, the plaintiffs have given the names of the third

parties/purchasers in their pleadings. The prayer clause of the plaint

shows that they have sought invalidity of those sale deeds.                  The

defendants have categorically objected in the written statement that

the suit was bad for non-joinder of necessary parties. On the basis of

that, the issues were framed way back in 2017. At this juncture when

the examination-in-chief is honoured by the plaintiffs the application

Exh.138 has been filed.


12.         It is trite law that when a party seeks to amend the

petition, even by incorporating the proposed defendants the party has

to pass the test of due diligence. An amendment even for adding the

party under Order I Rule 10 needs to be allowed considering the

subsequent developments, if any. In the case in hand, it is apparent

that the petitioners/plaintiffs were well aware of the fact that the
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proposed defendants have already purchased the portion of the suit

property even before filing the suit.        Their pleadings itself are clear

wherein they have recited the details of those sale deeds while seeking

invalidity of those sale deeds.        The names of the parties are also

mentioned by them in the pleadings. The defendants have raised a

substantial ground of not adding the vendees as necessary parties to

the suit. On the basis of those pleadings, as observed above the issues

are framed.


13.           Now,   at   this   juncture,   in   my   considered      view    the

amendment cannot be allowed for the reason that it cannot be said

that even after due diligence the petitioners were not within the

knowledge of the information to be amended in the suit. In the case in

hand, by way of amendment the petitioners want to add the parties in

the capacity of defendants to the suit.           Apparently, it is only after

giving the evidence in examination-in-chief the petitioners/plaintiffs

realised the defect in the suit and hence the application is filed. The

reasons rendered by the petitioners that the amendment is of casual

nature and will not change the nature of the suit is not acceptable one.

It cannot be said that there was any bonafide inadvertence on the part

of the petitioners/plaintiffs. It is trite law that the petitioners cannot

take benefit of their own wrong. Under that principle, I find that the
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petitioners fail to pass the test of due diligence for seeking the

amendment at this stage in the suit.


14.           The trial court has passed a reasoned order for which no

interference of this court is warranted under Article 227 of the

Constitution of India.     The Writ Petition fails and as such stands

dismissed.


15.           Considering the age of the suit, the trial court is requested

to conclude the suit within a period of eight months from the date of

this order.




                                    [AJIT B. KADETHANKAR, J.]
                                   ………..


KBP