41 WP5831.2013 -1- 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 2026:BHC-AUG:33235 41 WP5831.2013 -2- 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 -3- 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 -4- 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 41 WP5831.2013 -5- 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.) marathe