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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.3182/2011
PETITIONERS :- Gaimukh Deosthan. A Private Trust,
Through its Occupants/Manager,
1. Shri Manoharprasad Raghuvirprasad Pande,
aged about 76 years,
Occupation : Agriculturist,
Resident of Pandey Layout,
Nagpur.
ig 2. Shri Mukeshprasad S/o Ishwariprasad Pande,
Aged about 52 years,
Occupation: Agriculturist,
R/o. Sanjeevan Apartment,
Shankarnagar, Nagpur.
...VERSUS...
RESPONDENT :- 1. Yogesh S/o Ishwarprasad Pande,
Aged about 58 years,
Occupation: Business,
2. Mrs. Meena W/o Yogesh Pande,
Aged about 55 years,
Occupation: Household,
3. Akshay S/o Yogesh Pande,
Aged 31 years,
Occupation: Business,
All resident of Buty Chawl,
Sitabuldi, Nagpur.
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Shri P. V. Vaidya, learned counsel for the petitioners.
Shri Ramesh Darda, learned counsel for the respondents.
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CORAM : R. M. SAVANT J.
DATED : 14.07.2011
O R A L J U D G M E N T
1) Rule with the consent of the parties made returnable forthwith and
heard.
2) This petition filed under Articles 226 and 227 of the Constitution of
India takes exception to the order dated 19/03/2011 passed by the
learned 2nd Joint Civil Judge, Senior Division, Nagpur, by which order the
application for amendment of the plaint filed by the petitioners came to
be rejected.
3) The facts involved in the above petition in brief can be stated thus –
The petitioner-Trust was created by one Ganpatrao Pande. The
petitioner-Trust was having its properties at several places the said
properties included the property known as Ganesh Bhuvan, Civil Lines,
Nagpur. It is the case of the petitioners that the respondents herein are
not at all concerned with the said property, Ganesh Bhuvan. It is further
the case of the petitioners that the respondents entered into the said
premises of Ganesh Bhuvan and took forcible possession of an area of
3000 sq.ft. on 05/05/2004. This resulted in, the plaintiffs-petitioners
filed Special Civil Suit No.777/2004 under Section 6 of the Specific Relief
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Act. It is the case of the plaintiffs that though the suit has been filed
under Section 6 of the Specific Relief Act, through inadvertence the prayer
for restoration of possession and removal of illegal construction and
encroachment remained to be made. It is further the case of the plaintiffs
that the defendants considering that it was a suit under Section 6 of the
Specific Relief Act and therefore, being also one for possession, filed the
written statement accordingly. In the said suit the plaintiffs filed affidavit
on evidence and further examination-in-chief on behalf of the plaintiffs
was also recorded. It appears that the respondents herein moved an
application for dismissal of the suit on the ground that there was no
prayer for possession in the suit and, therefore, the suit filed under
Section 6 of the Specific Relief Act was not maintainable. The petitioners
thereafter on 16th October, 2010 moved an application for amendment of
the plaint.
4) As indicated above, the trial Court has rejected the said application
by the impugned order dated 19/03/2011. The sum and substance of the
reasons cited by the trial Court is that in moving the said application for
amendment, there was considerable delay and since the suit is fixed for
hearing, the said amendment could not be allowed. The trial Court also
held that the amendment now sought to be introduced could not be said
to be on the basis of subsequent events which had taken place.
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5) Heard the learned counsel for the parties.
Learned counsel for the petitioners Shri Vaidya contended that it is
through sheer inadvertence that the prayer for possession remained to be
incorporated in the plaint, though the suit is one filed under Section 6 of
the Specific Relief Act. It is further sought to be contended by Shri
Vaidya that since the defendants are aware that the suit is one filed under
Section 6 of the Specific Relief Act, the incorporation of a prayer for
possession would cause them no prejudice and would make no material
difference as they have already filed their written statement dealing with
the said aspect.
Per contra, the order passed by the trial Court is supported by
Shri Darda, the learned counsel for the respondent Nos.1 to 3 on the
ground that the prayer for possession, if now allowed to be introduced,
would be barred by limitation and, therefore, the prayer, which is barred
by limitation, cannot be permitted.
It is further submitted by Shri Darda that in an Appeal from Order,
this Court by order dated 6th April, 2010 has protected the possession of
the respondents herein in respect of an area of 7000 sq.ft. and lastly Shri
Darda contended that the issue of limitation which the respondents want
to urge in respect of the suit, as originally filed by the petitioners, would
be taken away.
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CONSIDERATION :
6) It is required to be noted that the suit filed by the petitioners is on
the basis of a forcible possession allegedly taken by the respondents on
05/05/2004. The suit, therefore, being one under Section 6 of the
Specific Relief Act, it is intrinsic to such a suit that the possession be
restored to the plaintiff, if he succeeds in proving that there was a forcible
dispossession. Therefore, the contention of the learned counsel for the
petitioners Shri Vaidya, viz. it is crucial inadvertence that the said prayer
for possession was not made, though the suit is one filed under Section 6
of the Specific Relief Act, therefore, deserves acceptance. In so far as the
contentions of the learned counsel for the respondents are concerned, it
would always be open for the respondents to urge the issue of limitation
and merely because the amendment application is allowed, the said right
of the respondents cannot be said to be taken away. It is well settled by
the catena of judgments of this Court and the Apex Court that the Court
should be liberal in allowing the amendment, more so when they would
result in a just decision of a case.
7) In my view, the application for amendment so as to introduce a
prayer for possession is necessary for a just decision in the said suit. As
otherwise if the said prayer is not introduced, it would not finally and
effectively determine the controversy between the parties. In that view of
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the matter, the above petition is required to be allowed and accordingly
allowed. Resultantly the impugned order dated 19/03/2011 is set aside
and the amendment application Exhibit-83 is allowed.
8) The respondents would be at liberty to file additional written
statement, if so advised consequent to the amendment.
9) Rule is accordingly made absolute in the aforesaid terms with
parties to bear their respective costs.
JUDGE
KHUNTE
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