Bombay High Court High Court

Prakash Ratanlal @ Ratansa Kasari vs Bhika on 23 September, 2009

Bombay High Court
Prakash Ratanlal @ Ratansa Kasari vs Bhika on 23 September, 2009
Bench: S. S. Shinde
                                 1




                                                              
          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), the

Parliament 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 the

trial has commenced, unless the court
comes to the conclusion that in spite

of due diligence, the party could not
have raised the matter before the

commencement 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

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of 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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proviso 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 correct

conclusion. 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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// REPORTABLE //

WRIT PETITION NO.3807 OF 2004
with

CIVIL 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.

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