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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.3807 OF 2004.
with
CIVIL APPLICATION Nos.7349/2005 & 6166/2007
IN
WRIT PETITION NO.3807 OF 2004.
Prakash Ratanlal @ Ratansa Kasari,
aged 54 years, occupation agril.,
r/o Old Jalna,
Dist. Jalna. .... PETITIONER.
ig [ Ori. Plaintiff ]
VERSUS
1. Bhika s/o Banda Dhage,
aged 52 years,
2. Sunil s/o Eknath Dhage,
aged 29 years,
Both agriculturists, r/o
village Shiraswadi,
taluka & Dist. Jalna. .... RESPONDENTS.
[ Defendants ].
...
Shri R.D. Deshpande, Advocate for Petitioner.
Mrs. Manjusha A. Deshpande, Advocate holding for
Shri A.S. Deshpande, Advocate for Respondents.
...
CORAM:S.S. SHINDE,J.
DATE : 23rd SEPTEMBER, 2009.
ORAL JUDGMENT:
1. This writ petition is filed challenging the
order dated 12.12.2003 below Exh.25 in R.C.S. No.
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370/2002 by which the application filed by the
petitioner herein for amendment of the plaint
under Order VI Rule 17 proviso of the Code of
Civil Procedure has been rejected.
2. The background facts of the case are as
under:
The petitioner herein filed R.C.S. No.370 of
2002 on 29.10.2002 for issue of perpetual
injunction restraining the respondents from
obstructing in his possession over agricultural
land Gat No.224 admeasuring 3 H. 73 R. situated
at Siraswadi, taluka and District Jalna.
In the said suit, the respondents filed
their written statement on 9th December, 2002 and
denied the claim of the petitioner herein.
3. It is further case of the petitioner that
during pendency of the suit and after going
through the facts stated in the written statement
and after perusing village record and
consolidation record, the petitioner claims to
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have known that despite securing permission under
Section 47 of the Hyderabad Tenancy Act from
Deputy /Collector, Jalna vide Exh.C, the owners
did not execute sale deed and since respondents
had left the village and petitioner was minor
during relevant period, the petitioner could not
bring suit for specific performance of agreement
for sale executed in favour of Ratanlal by the
owners. igSo he applied for amendment of plaint
vide Exh.25 on 5.9.2003 before commencement of
evidence, to seek relief of specific performance
of agreement for sale, to implead Tulsabai Bandu
Dhage as defendant no.3 and to plead material
facts suitably as stated in para a4 of Exh.25.
4. On 12.12.2003 after hearing both parties,
the trial Judge concluded that the amendment was
at belated stage and it will change the nature of
suit and the cause of action and rejected the
application filed by the present petitioner.
Hence, this petition.
5. This writ petition was heard for admission
and this Court was pleased to issue Rule and
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interim relief in terms of prayer clause (C) of
the petition.
6. The learned Counsel for the petitioner
submitted that the plea of oral mortgage relied
upon by the respondents is not in conformity with
any law and supports the agreement for sale which
came to knowledge of the petitioner after going
through the written statement at Exh.B before the
trial Court and after perusal of village record
and consolidation record. It is further
submitted that the application for amendment was
filed before the commencement of the trial and
addition of relief of specific performance of
agreement for sale could not be held to be
belated because title was denied by the
respondents for the first time when they prayed
for possession of the land before the Tahsildar
and pleaded non execution of sale deed in the
written statement. It is further submitted that
when permission to alienate disputed property was
granted under Section 47 of the Hyderabad Tenancy
Act by the competent authority and it is an
admitted position that Ratanlal during his life
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time since 1963 until his death in 1984 and after
his death, petitioner has been enjoying
possession of disputed land lawfully in pursuance
of the agreement for sale, the petitioner was
entitled to amendment sought which did not change
the nature of the suit and even if it did, it was
just and necessary to be allowed for adjudication
of real point in controversy and for avoiding
multiplicity ig of litigation. It is further
submitted that the Consolidation Officer after
holding necessary inquiry made relevant entries
about possession of the petitioner int he
Consolidation Record and as such, the same was
not objected to since 1965 to 2003 for a period
of 38 years and as such respondents were not
entitled to oppose amendment sought by the
petitioner. Therefore, the learned Counsel
submitted that amendment as prayed should have
been allowed by the trial Court. It is further
submitted that no reasons are assigned by the
trial Court while rejecting the prayer of the
petitioner for amendment of plaint. The learned
Counsel invited my attention to the impugned
order passed by the trial Court and submitted
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that the impugned order is without assigning any
reasons and to resolve the controversy in the
suit, the amendment should have been allowed. The
learned Counsel appearing for the petitioner
invited my attention to the contents of the
application which was filed before the trial
Court for amendment of the plaint and more
particularly, paragraph 3 of the said application
and submitted that sufficient cause was shown by
the petitioner herein before the trial Court as
to why the matter could not be brought in the
plaint in spite of due diligence. The learned
Counsel, in support of his contention, placed
reliance on the reported judgment of the Apex
Court in the case of Vidyabai & ors. vs.
Padmalatha and anr. [2009(1) ALL MR 471] and
submitted that the amendment should be liberally
allowed. Even the amendment can be allowed at
the appellate stage if case is made out by the
party.
7. The learned Counsel appearing for the
respondents vehemently opposed the petition and
submitted that the trial Court has given reasons
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in support of the impugned order in paragraphs 6,
7 8, and 11 of the impugned judgment.
Therefore,the contention of the petitioner that
the impugned order is without assigning reasons
is required to be rejected. The learned Counsel
for the respondents further submitted that no
sufficient cause has been disclosed in the
application below Exh.25 by the petitioner that
he was prevented by sufficient cause to bring the
matter in the main plaint. Therefore,the
application for amendment of the plaint does not
fulfill the requirement of the provisions of
Order VI, Rule 17 of the Code of Civil Procedure.
It is further submitted that the trial Court has
rightly held that if the amendment application is
allowed then the entire nature of the suit will
be changed and it will cause prejudice to the
respondents. The learned Counsel for respondents
submitted that the original suit is for perpetual
injunction and by way of amendment, new prayer is
being tried to be introduced for specific
performance which would change the nature of the
suit. She further submitted that the application
filed by the petitioner for amendment of the
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plaint is time barred. She invited my attention
to the contents of the application for amendment
and submitted that no sufficient cause has been
shown in the application so as to specify the
requirement of Rule 17 proviso of Order VI of
C.P.C. He supported his contention by relying on
reported judgment of Apex Court in case of
Ashutosh Chaturvedi v. Prano Devi and Ors. [AIR
2008 SC 2171] and Chanderkanta Bansal v. Rajinder
Singh Anand [AIR 2008 SC 2234]. Relying on
Ashutosh Chaturvedi (supra), the learned Counsel
for respondents submitted that the application
for amendment if brought at belated stage, it is
required to be rejected. The learned Counsel
placed reliance on the Head Note of the aforesaid
judgment and submitted that preferential right
can ordinarily be claimed within one year.
Relying on the case of Chanderkanta Bansal
(supra), the learned Counsel submitted that the
proviso to Rule 17, Order VI of C.P.C. Limits the
power to allow amendment after commencement of
trial but grants discretion to the Court to allow
amendment. Therefore, the Counsel would submit
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that the power to allow amendment after
commencement of the trial is restricted by
proviso. The learned Counsel therefore,
contended that the writ petition deserves to be
rejected.
8. I have given anxious consideration to the
rival submissions advanced on behalf of the
petitioner ig and respondents and, I am of the
considered view that the impugned judgment and
order below Exh.25 needs no interference for the
following reasons:
The perusal of para 6 of the judgment would
show that the trial Court has considered
documents on record produced on behalf of the
defendants, possession of the plaintiff is
unlawful and plaintiff has no title to the suit
land and is also not entitled to claim
possession. In paragraph 7 the trial Court has
recorded that in 7/12 extracts, there is note
against section 47 of the Hyderabad Tenancy Act.
The contention of the plaintiff that he came to
know about the real facts of the case only after
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reading the contents of written statement does
not appear true. It appears that plaintiff has
suppressed the real facts which he could not
continue to do so upon the disclosure of the same
through written statement. In paragraph 8 the
trial Court has recorded the submissions of the
Counsel appearing for the plaintiff. The trial
Court in paragraph 9 has recorded submissions of
the Advocate appearing for the defendants that
the claim of specific performance, which is
sought to be added by way of amendment, is
necessarily based on new cause of action and the
amendment changes the cause of action and the
same cannot be allowed. The trial Court has
considered number of reported judgments of this
Court as well as the Honourable Apex Court and
ultimately, in paragraph 11, has reached to the
conclusion that in case proposed amendment is
allowed then it will entirely change nature of
the suit and also it will cause prejudice to the
defendants and ultimately, the trial Court
rejected the application for amendment of the
plaint.
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9. On careful perusal of the impugned judgment
and order, it clearly appears that the matter
which the petitioner wanted to bring by way of
amendment in the plaint was within the knowledge
of the petitioner on the date of filing the suit.
The trial Court has rightly recorded in regard to
the above point in para 7 that the 7/12 extract
clearly shows a note against Section 47 of the
Hyderabad Tenancy Act and, therefore, the matter
which he wanted to bring by way of amendment was
within the knowledge of the plaintiff at the time
of filing the suit.
10. The Court has also recorded the arguments
advanced by the learned Counsel for the
respondents that in case amendment is allowed,
then it would be entertaining fresh cause, which
would prejudice the interest of the defendants.
The original suit was filed by the
petitioner for perpetual injunction. The
amendment which the petitioner wanted to bring to
the plaint was for specific performance of
contract to execute a sale deed regarding the
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suit land. Therefore, the original suit was for
perpetual injunction and by way of amendment, the
plaintiff introduced new prayer for specific
performance. Therefore, certainly if the
amendment is allowed, it would change nature of
the suit.
11. When the application for amendment of the
plaint was filed, the issues were already framed.
Therefore, unless the requirement under Rule 17
proviso of Order VI of C.P.C. is satisfied, it
was not permissible for the trial Court to allow
the amendment as prayed for by the petitioner –
plaintiff. On careful reading of the application
for amendment of the plaint, it clearly appears
that no sufficient cause was shown in the said
application to come to the conclusion that in
spite of due diligence shown by the petitioner,
the matter could not be brought in the original
plaint itself.
The Honourable Supreme Court in case of
Vidyabai & ors.(supra), in paragraph 7 of the
judgment, held as under:
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“By reason of the Civil Procedure Code
(Amendment) Act, 2002 (Act 22 of 2002), theParliament inter alia inserted a proviso to
Order 6, Rule 17 of the Code, which reads as
under:
“Provided that no application for
amendment shall be allowed after thetrial has commenced, unless the court
comes to the conclusion that in spiteof due diligence, the party could not
have raised the matter before thecommencement of trial.”
It is couched in a mandatory form. The
court’s jurisdiction to allow such an
application is taken away unless the
conditions precedent therefor are satisfied,
viz., it must come to a conclusion that in
spite of due diligence the parties could not
have raised the matter before the
commencement of the trial.”
In paragraph 8 of the said judgment, the
Supreme Court has held thus,-
“8. …… The date on which the issues
are framed is the date of first hearing.
Provisions of the Code of Civil Procedure
envisage taking of various steps at
different stages of the proceeding. Filing::: Downloaded on – 09/06/2013 15:06:44 :::
14of an affidavit in lieu of examination in
chief of the witness, in our opinion, would
amount to `commencement of proceeding’.”12. Therefore, on careful reading of paragraphs
7 and 8 of the aforesaid judgment, it is clear
that the jurisdiction of court to allow the
application for amendment is not permissible
unless the condition precedent under Rule 17
proviso of Order VI of C.P.C. is satisfied i.e.
the court must come to the conclusion that in
spite of due diligence the party could not raise
the matter before commencement of the trial. The
Apex Court has further held that Order VI, Rule
17 proviso is coached in mandatory form.
I find considerable substance in the
arguments advanced by the learned Counsel
appearing for respondents that the amendment
application has not been filed at appropriate
stage and the same was filed at belated stage.
13. Taking overall view of the matter, it
appears that the application filed below Exh.25
for amendment of the plaint does not show
sufficient cause as required under Rule 17
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15proviso of Order VI of C.P.C. and also the
application was filed at belated stage. That
apart, if the amendment application is allowed,
certainly it would change nature of the suit as
well as cause prejudice to the defendants. The
trial Court, on the strength of the evidence
brought on record by the parties as well as after
appreciating the contentions of the respective
parties to
ig the suit, as come to the correctconclusion. The trial Court has taken a
reasonable and possible view of the matter. No
interference is called for in extraordinary
jurisdiction of this court under Article 227 of
the Constitution of India.
14. Therefore, writ petition is dismissed. Rule
is discharged. Interim relief stands vacated.
Civil Applications stand disposed of.
[ S.S. SHINDE, J ]
…..
PLK/*
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16// REPORTABLE //
WRIT PETITION NO.3807 OF 2004
withCIVIL APPLICATION Nos.7349/2005 & 6166/2007
IN
WRIT PETITION NO.3807 OF 2004.Date of decision :23.09.2009
For approval and signature.
THE HONOURABLE SHRI JUSTICE S.S. SHINDE.
1.
Whether Reporters of Local Papers
may be allowed to see the judgment?}
} Yes.2. To be referred to the Reporter or not? } Yes
3. Whether Their Lordships wish to see
the fair copy of the judgment? } No.4. Whether this case involves a substantial }
question of law as to the interpretation }
of the Constitution of India, 1950 or }
any Order made thereunder? } No.5. Whether it is to be circulated to the }
Civil Judges? } No.6. Whether the case involves an important }
question of law and whether a copy of }
the judgment should be sent to Mumbai, }
Nagpur and Panaji offices? } No.[Prakash Kadam]
Private Secretary to
the Honourable Judge.::: Downloaded on – 09/06/2013 15:06:44 :::