Bombay High Court
KANTABAI SHIVAJI GADAKHversusJAGANNATH BHIKA GADAKH AND OTHERS
- Disposal
- DISPOSED OFF
- Bench
- SACHIN S DESHMUKH
Holding
The trial court did not err; the amendment of the written statement and counter‑claim was permissible and the petition is dismissed.
Summary
The petitioner, Kantabai Shivaji Gadakh, filed a suit seeking a perpetual injunction against the respondents for alleged encroachment of ancestral land. The respondents filed a counter‑claim for ownership of a portion of the land and later sought to amend their written statement and counter‑claim. The trial court allowed these amendments, prompting the petitioner to challenge the orders by filing a writ petition. The High Court examined whether the trial court erred in permitting the amendment and whether such amendment would prejudice the petitioner. It held that the amendment was permissible, did not alter the nature of the counter‑claim, and the trial court’s order was not perverse. Consequently, the writ petition was dismissed.
Issues considered
- Whether the trial court erred in allowing amendment of the written statement and counter‑claim filed by the respondents.
- Whether such amendment, if allowed, would cause prejudice to the petitioner and thus be barred.
- Whether the order permitting amendment is perverse or contrary to law.
Subjects
- civil procedure
- amendment of pleadings
- counter claim
- injunction
- encroachment
- jurisdiction
- writ petition
- trial court order
Judgment
2026:BHC-AUG:33235
41 WP5831.2013
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5831 OF 2013
. KANTABAI SHIVAJI GADAKH,
Age: 43 Years, Occu.: Agril.,
R/o. Sonai, Tq. Newasa,
District – Ahmedngar .. Petitioner
(Orig. Plaintiff)
Versus
1. JAGANNATH BHIKA GADAKH
2. EKNATH JAGANNATH GADAKH
3. DATTATRAY JAGANNATH GADAKH
4. SOPAN JAGANNATH GADAKH
5. SUDHAKAR JAGANNATH GADAKH .. Respondents
(Orig. Defendants)
...
Advocate for the Petitioner : Mr. Chandrakant K. Shinde
Advocate for Respondent No.3 : Mr. Anand P. Bhandari
...
CORAM : SACHIN S. DESHMUKH, J.
Date : 27.07.2026
PER COURT :-
1. The challenge is raised to the orders dated
24.06.2013, rendered by the learned C.J.J.D. Newasa in
Applications below Exhibits 176 and 179, presented by the
defendants in the suit, seeking amendment in Written Statement
vis-a-vis the counter claim.
2. The Petitioner is the original plaintiff in R.C.S. No.56
41 WP5831.2013
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of 2012 (Old No.297 of 1999) instituted against the respondents
(original defendants). Hereinafter the parties shall be referred by
their original status in the suit.
3. The Plaintiff instituted the suit seeking perpetual and
mandatory injunction in relation to the suit land situated at
village Sonai, Taluka Newasa, District Ahmednagar contending
that the same is an ancestral property and defendants had
committed encroachment on the same.
4. On the contrary, the defendants resisted the suit, and
also raised a counter claim for declaration of ownership regarding
the portion of suit land admeasuring 13 Are out of Survey
No.550/1/3 in the eastern side of their residential house.
5. In the interregnum, the trial court framed an
additional issue regarding the jurisdiction and rendered the same
to the District Judge to get it transferred before the appropriate
court, since the matter pertained to a dispute under consolidation
scheme.
6. Aggrieved by the same, the Plaintiff preferred R.C.A.
No.129 of 2001 before the District Judge, Shrirampur, which
41 WP5831.2013
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came to be allowed and the suit was remitted back to the trial
court by the Judgment and Order dated 16.12.2004.
7. The plaintiff filed an application seeking appointment
of the Court Commissioner contending that due to interim orders
were vacated as well as the dismissal of suit, the defendant had
taken undue advantage and caused further encroachment over
the suit land.
8. Consequently, the Court Commissioner was appointed
by the order dated 13.10.2005 and the report came to be
submitted. However, the Plaintiff objected to the same and
presented another application for appointment of Court
Commissioner. The same came to be allowed by the order dated
28.09.2007. Accordingly, report came to be submitted indicating
that the defendants had further encroached the suit land by 24
Are.
9. In view of the additional material revealed during the
inspection and evidence, the Plaintiff filed an application below
Exhibit-172 seeking amendment of Plaint, which came to be
allowed by the order dated 17.12.2012.
41 WP5831.2013
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10. Resultantly, the defendants presented applications
below Exhibits-176 and 179, seeking corresponding amendment
of Written Statement vis-a-vis the Counter Claim, which came to
be allowed by the orders under challenge. Aggrieved by the same,
the Plaintiff is before this Court.
11. Mr. C. K. Shinde, learned counsel for the Petitioner
submits that the orders under challenge are bad in law. By the
way of amendment, the defendants are seeking to withdraw the
admissions already made, which may cause serious prejudice to
the Petitioner. There is no justifiable reason, offered by the
defendants, while presenting the application for amendment and
the same ought not to have been allowed.
12. Per contra, Mr. A. P. Bhandari, learned counsel for the
Respondent No.3 supports the order and prayed to dismiss the
Petition.
13. Upon hearing learned counsel for respective parties
and perusal of the material on record, it is pertinent to note that
the plaintiff was permitted to carry out the amendment.
Accordingly, a corresponding amendment is sought by the
defendants in the Written Statement as well as in the Counter
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Claim. As such, the order rendered by the trial court cannot be
regarded as perverse. In any event, amendment does not change
nature of the counter claim raised by the defendant. As such, the
trial court has not committed any error, while rendering the
order under challenge.
14. Mr. C. K. Shinde, learned counsel for the Petitioner is
justified in submitting that the necessary opportunity ought to be
extended to the Petitioner. Needless to state that the same shall
be available to the Petitioner in accordance with law.
15. With the aforesaid observations, the Writ Petition is
disposed of.
(SACHIN S. DESHMUKH, J.)
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