In the reply, the respondent has not specifically denied
the averments of the petitioner that she is having some share in the
landed properties. It has also not been denied by the respondent that
because of her having shares in the landed properties there is a
possibility of earning of some income therefrom by her. Even the
documents placed on record which documents, as stated by learned
Counsel for the petitioner, are the true copies of the documents filed
on record before the lower Court, support the contentions of the
petitioner. These documents do not at all show at this stage, that the
name of the respondent has been deleted by way of mutation
sanctioned by the competent authority under the provisions of the
Land Revenue Code. With such facts there being present on record,
it is quite surprising to note that the learned Magistrate has recorded
a finding that the name of the respondent has been deleted from the
7/12 extracts pertaining to some of the agricultural lands. This
finding is prima facie against the material present on record and
also amounts to entering into the merits of the case, which is not
permissible at the stage of consideration of an amendment
application. Besides, there has been no denial on the part of the
respondent about the said contentions of the petitioner. Therefore,
the order impugned herein is perverse and arbitrary and as such
cannot be sustained in law.
As regards the contention that allowing of amendment
application would cause delay to the proceedings, I must say that
there is no substance in the same, as by arbitrary rejection of the
amendment application, the matter has been already unnecessarily
delayed. If the respondent had given her no objection to the
application, this situation would not have arisen. That apart, what
is illegal and arbitrary in law cannot be allowed to be continued on
the excuse of delay in proceedings.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Writ Petition No.926 of 2014.
Surendra Ramdas Mahure,
Vs
Sau. Anita Surendra Mahure,
Coram : S.B. Shukre, J.
Dated : 08 January, 2015.
Citation; 2015 ALLMR(CRI)2124
Rule. Rule made returnable forthwith. Heard finally with the
consent of the learned Counsel for the parties.
This Writ Petition is directed against the order passed by
1]
the Judicial Magistrate, First Class, Court No.6, Akola on
14102014, thereby rejecting the amendment application of the
petitioner vide Exhibit53.
It is the contention of the petitioner that when he had
2]
filed his reply to the application filed under Section 12 of the
Protection of Women from Domestic Violence Act, 2005 by the
respondent, in which the amendment was also claimed, the petitioner
was not aware of the fact that the respondent was getting some
income from her share in various agricultural lands. The petitioner
also submitted that he got information in that regard on 09052014
and, therefore, he immediately moved an application for amendment
by incorporating his averments regarding earning of income by the
respondent in his reply. The application was opposed by the
respondent only on the grounds that there was no provision under
the Protection of Women from Domestic Violence Act for granting
permission to amend the reply filed by the petitioner and that the
amendment application had been moved only with a view to delay
the proceedings at the time when the matter was fixed for recording
of evidence.
3]
Upon consideration of the stand taken by both the sides
and hearing the rival parties, the learned Magistrate, by an order
passed on 14102014 rejected the application. Being aggrieved by
the same, the petitioner is before this Court in the present Writ
Petition.
It is the contention of the learned Counsel for the
4]
petitioner in the first place that the respondent was having her share
in six landed properties and that earning of income therefrom was
not at all denied by the respondent and in the second place that there
were also documents placed on record, which were in the nature of
7/12 extracts and the admissions of the respondent which appeared in
written statement filed in Regular Civil Suit No.29 of 2009 clearly
indicating that the respondent was the owner of some landed
properties thereby giving rise to a possibility of earning of some
income by her and even then, the learned Magistrate, by entering
into the merits of the matter, found that the entries in 7/12 extracts
in the name of respondent came to be deleted by way of mutation,
which is not permissible in law while considering the prayer for
amendment of the reply.
5]
The learned Counsel for the respondent, strongly
opposing the petition submits that even though there are no specific
denials in the reply filed to the amendment application vide
Exhibit53 to the submissions of the petitioner that the respondent
was having her landed properties and was earning some income, the
amendment application was rightly rejected by the learned
Magistrate because it was filed with a view to delay the proceedings.
He also submits that the respondent always had an opportunity to
prove his defence that the respondent being the owner of some
landed properties was capable of earning independently by giving
appropriate suggestions in the cross examination and by placing
documents in support thereof. Therefore, no prejudice has been
caused to the petitioner by rejecting his amendment application so
submits the learned Counsel.
6]
Upon perusal of the amendment application, reply filed
thereto and the copies of the documents produced before the Court
of Judicial Magistrate, which are forming the part of present petition,
I find substance in the argument of the learned Counsel for the
petitioner and no merit in the argument of the learned Counsel for
the respondent.
7]
In the reply, the respondent has not specifically denied
the averments of the petitioner that she is having some share in the
landed properties. It has also not been denied by the respondent that
because of her having shares in the landed properties there is a
possibility of earning of some income therefrom by her. Even the
documents placed on record which documents, as stated by learned
Counsel for the petitioner, are the true copies of the documents filed
on record before the lower Court, support the contentions of the
petitioner. These documents do not at all show at this stage, that the
name of the respondent has been deleted by way of mutation
sanctioned by the competent authority under the provisions of the
Land Revenue Code. With such facts there being present on record,
it is quite surprising to note that the learned Magistrate has recorded
a finding that the name of the respondent has been deleted from the
7/12 extracts pertaining to some of the agricultural lands. This
finding is prima facie against the material present on record and
also amounts to entering into the merits of the case, which is not
permissible at the stage of consideration of an amendment
application. Besides, there has been no denial on the part of the
respondent about the said contentions of the petitioner. Therefore,
the order impugned herein is perverse and arbitrary and as such
cannot be sustained in law.
8]
As regards the contention that allowing of amendment
application would cause delay to the proceedings, I must say that
there is no substance in the same, as by arbitrary rejection of the
amendment application, the matter has been already unnecessarily
delayed. If the respondent had given her no objection to the
application, this situation would not have arisen. That apart, what
is illegal and arbitrary in law cannot be allowed to be continued on
the excuse of delay in proceedings.
In this view of the matter, I am inclined to allow the
9]
petition. The impugned order dated 14102014 passed below
Exhibit53 is hereby quashed and set aside. The application at
Exhibit53 is allowed. Amendment be carried out within a period of
two weeks from the date of the order. The parties shall appear before
the Court of Judicial Magistrate, Court No.6, Akola on the next date
that may be given by that Court.
10]
Rule is made absolute in these terms. Writ Petition is
disposed of accordingly.
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