Bombay High Court

BHIMRAO SAMBHAJI KADAMversusMAHADEV FAKIRA GORE AND OTHERS

Disposal: DISPOSED OFF
Bench: SACHIN S DESHMUKH

Holding

The amendment under Order VI Rule 17 is permissible as it does not alter the nature of the suit and no prejudice is shown, so the trial court's order is quashed.

Summary

The petitioner Bhimrao filed a civil suit for declaration and injunction and later applied to amend the suit under Order VI Rule 17 of the CPC to limit his claim to an equal share of water from a well. The trial court rejected the amendment, prompting a writ petition. The petitioner argued that the amendment does not change the nature of the suit, is not barred by limitation, and causes no prejudice, relying on Abdul Rehman v. Mohd. Ruldu. The respondents contended that the prior sale deed and lack of diligence justified the rejection. The High Court held that the amendment does not alter the suit’s nature, no prejudice was shown, and therefore allowed the amendment, quashing the trial court’s order.

Issues considered

Whether an amendment under Order VI Rule 17 of the CPC that restricts the claim to an equal share of water alters the nature of the suit
Whether the amendment is barred by the law of limitation
Whether the amendment causes prejudice to the respondents

Legislation cited

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

Subjects

Amendment of suit
Order VI Rule 17
Civil Procedure Code
Water rights
Injunction
Limitation
Prejudice

Judgment

2026:BHC-AUG:26194
                                                          Writ Petition No.5626/2015
                                           :: 1 ::




                     IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                 BENCH AT AURANGABAD


                              WRIT PETITION NO.5626 OF 2015


            Bhimrao s/o Sambhaji Kadam                    … PETITIONER

                     VERSUS

            Mahadev s/o Fakira Gore & ors.                … RESPONDENTS

                                           .......
            Mr. K.R. Doke, Advocate for petitioner
            Mr. V.S. Undre, Advocate for R.No.1, 3 to 5
                                           ....…

                                   CORAM : SACHIN S. DESHMUKH, J.
                                   DATE      : 2nd JULY, 2026

            PER COURT :


            1.          The petitioner (original plaintiff) is before this Court,

            raising an exception to the order dated 20/1/2015 rendered by the

            learned Jt. Civil Judge, Junior Division, Bhoom, below Exh.60 in

            Regular Civil Suit No.227/2008, rejecting the application for

            amendment filed under Order VI Rule 17 of the Civil Procedure

            Code. The suit was presented for declaration and injunction. It is

            thereafter a request was made by way of application under Order

            VI Rule 17 of the Civil Procedure Code to restrict the claim to the
                                                 Writ Petition No.5626/2015
                                 :: 2 ::


extent of equal share in the water from the well. The same is

rejected, therefore, the petitioner is before this Court.


2.          Learned counsel for the petitioner submits that, the

proposed amendment does not alter the nature of the suit as well

as the claim is also not barred by Law of Limitation and as such, no

prejudice would have been caused to the respondent if the

amendment is allowed. In support of his contentions, the learned

counsel for petitioner has reliance on the decision of the Apex

Court in the case of Abdul Rehman & anr. Vs. Mohd. Ruldu &

ors. [ 2012 AIR SCW 5419 ] and submits that the amendment

deserves to be allowed.


3.          Per contra, learned counsel for the respondents No.1

and 3 to 5 has supported the impugned order, submitting that, since

the sale deed is prior in time, as such, in absence of due diligence

on the part of the petitioner, the Trial Court is justified in rejecting

the application and the petition deserves to be dismissed.


4.          Upon hearing learned counsel for the respective parties

and perusal of the material on record, prima facie, it is apparent

that, by virtue of proposed amendment, the petitioner is rather

restricting his claim to the extent of equal share in the water in well
                                               Writ Petition No.5626/2015
                               :: 3 ::


in view of the fact that the sale deed is already executed.

Nonetheless, the proposed amendment does not alter the nature of

the suit.   So far as the contention of learned counsel for the

respondents No.1 and 3 to 5 that no diligence has been adhered by

the plaintiff while seeking the amendment does not warrant

consideration in absence of proved prejudice. In that view of the

matter, the petition deserves to be allowed.


5.          In the result, the Writ Petition is allowed. The impugned

order dated 20/1/2015 rendered by the learned Jt. Civil Judge,

Junior Division, Bhoom, below Exh.60 in Regular Civil Suit

No.227/2008 is quashed and set aside. The application (Exh.60)

filed by the petitioner for amendment is allowed.




                                   (SACHIN S. DESHMUKH, J.)




fmp/-

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