ANIL Vs. ANITA

JUDGEMENT

(1.) Heard learned counsel for the parties. The present petitioners, are the original defendants, who are aggrieved by the orders dated 13/03/2019, by which two applications exhibit no. 70 and 77 permitting the plaintifs to add properties to the disputes and third parties as defendants have been allowed, in Special Civil Suit No. 160 of 2012, seeking partition and separate possession. The issues were settled on 17/07/2013 and the afdavit in lieu of examination-in-chief was fled on 07/08/2014 and the matter was pending for the cross-examination when the applications for amendments were fled.

(2.) Mr. Sushant Choudhari, learned counsel for the petitioners/original defendants, submits, that since the afdavit in lieu of examination-chief was fled on 07/11/2014, the trial had commenced, in view of which the proviso to order VI Rule 17 of CPC, became applicable. He further submits, that the matter, stood posted for cross-examination of plaintif no.2, whose afdavit in lieu of examination-chief, was already fled on the date mentioned above, which position is clearly disclosed from para 1 of Exhibit-70/page 27, in view of which the amendments ought not to have been allowed.

(3.) He further submits, that by the application at Exhibit-70 the plaintif, wanted to include in the schedule of properties, in respect of which partition was sought, the land of Gut no.17, situated at village Naigaon, Taluka : Gangapur, which was already sold on 29/08/2006, by a registered sale deed bearing no. 3767, and so also the addition of the purchasers of the said property as defendant nos. 4 to 29. The said application Exh-70, also sought to add the boundaries of Gut no. 43. The application at Exh-70, came to be fled on 17/07/2017, in Special Civil Suit No.160 of 2012. He submits, that in earlier suit bearing Special Civil Suit No. 513 of 2011, which was fled by the defendant nos. 1 and 3 against the plaintifs and others, in the afdavit evidence at Exh-98 dated 22/10/2012, it was mentioned, that the land of Gut no.17 already stood sold on 29/08/2006 and therefore, the plaintifs, who are parties to Special Civil Suit No. 513 of 2011, as of 22/10/2012 had clear and specifc knowledge of the sale of the land of Gut No. 17 on 29/08/2006 and therefore, the application at Exh-17, fled on 17/11/2017, by suppressing the above, was clearly not maintainable. He further submits that the order by the trial court, passed below Exh-17, does not consider this aspect at all in its proper perspective, viz-a-viz, the requirement of the proviso to order VI Rule 17 of CPC and merely on the ground, that the cross-examination has not been commenced, has allowed the application, which cannot be sustained in law, as the requirement of law in this regard has not been complied with. He submits, that the application at Exh.17, does not given a reason or cause for satisfying the requirement of the proviso to Order VI Rule 17, due to which the order cannot be sustained.