Bombay High Court
Barkatali Abdul Razzak Kazi } vs Manzoor Abdul Razzak Kazi } on 11 April, 2014
Author: R. M. Savant
Bench: R. M. Savant
WP.171.2014.903.judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 171 OF 2014
1) Barkatali Abdul Razzak Kazi }
Age - 53 years, Occ. Agriculture }
Residing at Kazi Mohalla, Rajapur }
District - Ratnagiri }
2) Noorjahan Gafoor Shijwalkar }
Age - 43 years, Occ. Household }
Residing at Chandnagar, }
at and post - Kausa, Mumbra, }
Taluka and District - Thane
ig }
3) Aishabi Jabbar Thakur }
Age - 38 years, Occ. Household }
Residing at Amrut Nagar }
Mumbra, District - Thane } Petitioners
versus
1) Manzoor Abdul Razzak Kazi }
Age - 48 years, Occ. Agriculture }
Residing at Kazi Mohalla, }
Post Rajapur, Dist. Ratnagiri }
2) CIDCO, }
CIDCO Bhavan, CBD/Belapur }
Navi Mumbai - 400 614 } Respondents
Mr. Shriram S. Kulkarni for the Petitioners.
Mr. Atul S. Rajadhyaksha - Senior Advocate with Mr. Akhilesh Dubey,
Mr. Vagish Mishra and Mr. Rajendra Tambe i/b. Mr. Rahul R. Sharma for
Respondent No. 1.
CORAM :- R. M. SAVANT, J.
DATED :- APRIL 11, 2014
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ORAL JUDGMENT:
At the outset, the learned Counsel appearing for the Petitioners Shri. Kulkarni, on instructions of the Petitioners, seeks deletion of the Respondent No. 2, who, according to the Petitioners, is a formal party, in the context of the present Petition. The Respondent No. 2 is accordingly allowed to be deleted at the risk of the Petitioners.
2) Rule, with the consent of the learned Counsel appearing for the parties, made returnable forthwith and heard.
3) The Writ Jurisdiction of this Court is invoked against the order dated 26th November, 2013, passed by the learned Civil Judge, Junior Division, Panvel, by which order, the application for amendment of the Plaint, filed by the Petitioners/ original Plaintiffs under Order I Rule 10 of the Civil Procedure Code (hereinafter referred to as "the CPC"), read with Order VI Rule 17 of the CPC, came to be rejected.
4) The facts necessary to be cited for adjudication of the above Petition, in brief, can be stated thus:
The Petitioner No. 1 and the Respondent No. 1 herein are brothers. The Petitioner Nos. 2 and 3 are the sisters of the Petitioner No. 1 and the Respondent No. 1. The father of the parties was one Abdul Razzak Kazi, who died on 11 th July, 1998. One Sonabai was their Page 2 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc grandmother and the properties, which are mentioned in paragraph 2 of the Plaint, were belonging to her and her sisters. The said properties, which were lands in Panvel District, were the subject matter of acquisition for the project of New Bombay. Awards were passed in respect of the said lands in the name of Sonabai. Proceedings for enhancement of compensation, by way of Reference under Section 18, were filed, which proceedings were decided leading to the filing of a First Appeals in this Court being First Appeal No. 983 of 1988 and First Appeal No. 919 of 1992 by the said Sonabai. It is pending the said First Appeals that Sonabai died. The Respondent No. 1 herein filed Civil Applications in the said First Appeals for bringing himself on record of the First Appeals on the basis of the Gift Deed executed by Sonabai.
The said applications came to be allowed. The Respondent No. 1 withdrew the amount of compensation. After the Petitioners had acquired knowledge of the withdrawal of the compensation that they filed an application for review of the order permitting the Respondent No. 1 to withdraw the amount. The application of the Petitioners was based on the Will dated 1st July, 1995 in their favour, allegedly executed by the said Sonabai. This Court, in view of the competing claim made by the Petitioners, to the compensation, on the basis of the Will, observed that it would be open for the Petitioners to assert their right on the basis of the Will by way of a Suit. This is how the instant Suit Page 3 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc being Special Civil Suit No. 31 of 2005 came to be filed by the Petitioners. The Respondent No. 1 herein is the original Defendant No. 1 to the Suit.
In the Suit, the Plaintiffs have inter-alia claimed reliefs by way of a declaration that the Gift Deed dated 30th September, 1995 in favour of the Defendant No. 1 be declared as illegal, obtained by fraud and misrepresentation, direction to the Defendant Nos. 1 and 2 for giving account of the amount of compensation available for distribution, amounts paid to the Defendant No. 1, the amounts remaining to be paid, declaration is also sought that the Plaintiff have 1/12 th share in the suit properties and a further declaration that the Will dated 1 st July, 1995, executed by the deceased Sonabai, is legal and valid. The Plaintiffs have also sought permanent injunction. The aforesaid is the gist of the reliefs sought in the Plaint, however, in the context of the present Petition, it would be apposite to reproduce prayer clauses 'c', 'd' and 'f' of the Plaint, which read thus:
"c) That the defendant No. 1 and 2 may be directed to give account of the amount of compensation available for distribution of the share of deceased Sonubai, the amounts paid to defendant No. 1 and amount remaining to be paid and plots of 12 ½ to be allotted by defendant No. 2 the heirs of deceased Sonubai.
d) It may be declared that, the plaintiffs have one twelve share in the properties and/or compensation of the properties left by deceased Sonubai and defendant No. 1 also is entitled for the same 1/12th share equal to the each off the plaintiffs.
e) ............. Page 4 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc f) That the Defendant No. 1 be restrained by a permanent
injunction not to deal with any more in any transaction of any land and/or not to receive any amount from defendant No. 2 in lieu of remaining compensation amount in liquidity and twelve and half percent land in kind."
In the said Suit, a Written Statement came to be filed by the Defendant No. 1, wherein, the case of the Plaintiffs has been denied.
The Defendant No. 2 i.e. City and Industrial Development Corporation (hereinafter referred to as "the CIDCO") also filed its Written Statement.
In the Written Statement of the CIDCO, the entitlement on account of the acquisition of land, by way of two plots, one at Kharghar and one at Pachnand, has been stated. It has further been stated in paragraph 5 of the Written Statement of the CIDCO that the plots have not yet been given to the PAPs, their heirs, as they have not approached the said Defendant and the lease agreement of the plots cannot be executed unless they all approach together with proper proof of being PAPs themselves or their legal heirs. It appears that an application for temporary injunction, numbered at Exhibit-5, came to be filed by the Plaintiffs, which came to be rejected by the Trial Court. It seems that the matter was not carried further and therefore, the rejection of the application for temporary injunction became final.
After the application for temporary injunction was rejected, the CIDCO allotted two plots to the Defendant No. 1, and 20 others by allotment letter dated 26th May, 2008. The Defendant No. 1 thereafter Page 5 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc entered into a Tripartite Agreement with one Gurukripa Enterprises on 16th July, 2008, to which agreement, the CIDCO was also a party. The said Gurukrupa Enterprises, in turn, executed a Tripartite Agreement on 12th November, 2009 in favour of one Limani Developers, to which also the CIDCO was a party. The said Tripartite Agreements were executed by complying the formalities in that regard, in the matter of payment of additional lease premium to the CIDCO as per rules. It appears that the said Limani Developers thereafter undertook development and today, according to the learned Senior Counsel appearing for the Defendant No. 1, a building has been put up on the said plot of land.
The parties went to trial. The issues in the Suit were framed on 4th July, 2006. The Plaintiffs have led evidence of seven witnesses, amongst whom are the Plaintiffs Nos. 1 and 2. In the context of the present Petition, it is relevant to note that the Plaintiff No. 2, in her cross-examination by the Defendant No. 1, has stated that the papers regarding the transfer of the plots by the Defendant No. 1 to one N. H. Patel (concerned for Gurukupa Enterprises) were with her, but she has not produced them on record. She has further stated that she became aware of the transfer of plots three years back i.e. three years prior to the date of her deposition on 6th August, 2011. It is after leading the evidence of seven witnesses that the application for amendment of the Plaint was filed on 10th October, 2013. By the said application, the Page 6 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc impleadment of Gurukrupa Enterprises, through its partners, as Defendant No. 3, as well as the impleadment of the said Limani Developers, through its partners, as Defendant No. 4, was sought. By the said amendment, the averments i.e. the allotment by CIDCO to the Defendant No.1, thereafter the transfers by the Defendant No. 1 to the proposed Defendant No. 3 and by the proposed Defendant No. 3 to the proposed Defendant No. 4 were sought to be incorporated. Based on the said averments, additional prayers were sought to be incorporated in the Plaint. It was averred in the said application that the Plaintiffs became aware of the allotment from one Munraj Puri who is conversant with the allotments made under the 12.5% scheme of CIDCO and thereafter on making inquiries in the Sub-Registrar's on 27-02-2013 they became aware of the transaction between the Defendant No.1 and the Defendant No.3 and the Defendant No.4. It would be relevant to reproduce the prayers, which were sought to be incorporated in the Plaint, which are prayer clauses (d-1) to (d-5), which, for the sake of ready reference, are reproduced herein under:
"d(1) That, the Agreement to Lease dated 26th May, 2008 executed by Defendant No. 2 CIDCO in respect of Plot No. 72, Sector 20, at Kharghar, the subsequently executed Tripartite Agreement dated 16/7/2008 in favour of Defendant No. 3 in respect of the Plot No. 72, further the Tripartite Agreement dated 12/11/2009 executed in favour of Defendant NO. 4 in respect of the same property be declared as null and void and not binding upon to the extent of the share of the Plaintiffs.
d(2) It may be please be declared that, the Plaintiffs are jointly Page 7 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc entitled for 2167 sq. mtrs., area out of the total area admeasuring 3250 sq. mtrs., in Plot No. 4, situated at - Taloje Pachanand which came to be share of deceased Sonubai (Aminabai).
d(3) It may please be declared that, the Plaintiffs are jointly entitled for 87 sq. mtrs., out of the total area of Plot No. 72, admeasuring 1550 sq. mtrs., at Kharghat which came to the share of deceased Sonubai (Aminabai) d(4) The preliminary decree of partition may be pleased be passed accordingly.
d(5) The preliminary decree may pleased be send to the Collector of Raigad/ and or before the Competent Authority for execution of the partition by metes and bounds in respect of the suit properties, in accordance with the shares of the parties and allotment to the Plaintiffs of their divided share in severally."
Hence, by way of the amendment, two new parties were sought to be added. The substantial averments regarding them as also prayers sought against the said parties were also sought to be incorporated.
The said application was replied to on behalf of the Defendant No. 1. The said application was opposed inter alia on the ground that the application to implead the proposed Defendants and the averments in the Plaint has been filed beyond limitation, that the application could not be entertained as the Suit is at the fag end and that if the amendments as sought by the application are allowed, the nature of the Suit will change.
5) The Trial Court considered the said application and as indicated above, by the impugned order dated 26th November, 2013, rejected the same. The gist of the reasoning of the Trial Court is that Page 8 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc the Plaintiffs, in seeking the said amendment, have not been diligent, as the averments are sought to be moved long after the evidence of the Plaintiffs is over. The Trial Court also observed that the relief by way of declaration sought in respect of the agreements between the Defendant Nos. 1 and 3 and the Defendant Nos. 3 and 4 was beyond the period of three years and therefore, barred by Article 58 of the Limitation Act.
The Trial Court observed that the amendments are not required to be allowed, as the parties have entered into a transaction during the pendency of the Suit and therefore, the parties would be bound by the decision in the Suit. The Trial Court further held that the amendments, if allowed, would change the nature of the Suit, as the Suit being filed originally for declaration in respect of the Gift Deed and Will Deed and for accounts would be converted into a Suit for partition. The Trial Court lastly observed that impleading the proposed Defendant Nos. 3 and 4 would set the clock back, as the whole rigmarole of filing of Written Statement by the proposed Defendants, the leading of evidence, would have to be gone through once again. As indicated above, it is the said order dated 26th November, 2013 which is taken exception to by way of the above Petition.
6) SUBMISSIONS OF SHRI. S.S.KULKARNI, the learned Counsel appearing for the Petitioners:
(i) That the Trial Court erred in adjudicating the application Page 9 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc on the touchstone of Order VI Rule 17 of the CPC.
(ii) That the Trial Court failed to appreciate that the application was one under Order I Rule 10 of the CPC and therefore, what was required to be seen by the Trial Court was whether the proposed Defendants were necessary or proper parties to the Suit.
(iii) That the transferee pendente lite, who, in the instant case, are the Defendant Nos. 3 and 4, are required to be brought on record for a complete and effectual adjudication of the dispute.
In support of the said submission, reliance was placed on the Judgment of the Apex Court in the case of Thomson Press (India) Ltd.1, in the case of Amit Kumar Shaw and Anr. vs. Farida Khatoon and Anr.2 and in the case of Dhanlakshmi and Ors. vs. P. Mohan and Ors.3.
(iv) That the delay cannot come in the way of the Plaintiffs in seeking the amendment, as an issue can be framed in that regard and can be tried at the time of trial.
(v) That the Trial Court has discretion even to allow a time barred amendment.
Support is sought to be taken in that regard from the Judgment of a learned Single Judge of this Court in the case of Banu w/o. Kutubuddin Sulemanji Vimanwala and Anr. vs. Kutubuddin Sulemanji Vimanwala4.
(vi) That the ground of the clock being set back is not a ground for rejecting the application for amendment, if the amendments are 1 2013 (5) SCC 397 2 2005 (11) SCC 403 3 2007 (10) SCC 719 4 1995 (2) Mh. L. J. 506 Page 10 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc necessary for a complete and factual adjudication of the Suit.
Reliance is sought to be placed on the Judgment of a learned Single Judge of this Court in the case of Krishnaji Shankar Moghe vs. Sitaram Gangadhar Shende5, wherein, the learned Single Judge has held that if subsequent events are in relation to the subject matter of dispute between the parties and are necessary to decide the real controversy, mere delay in filing the application for amendment or because a party to the proceedings will have to lead evidence consequent to the amendment of the pleadings, cannot be a justification for refusal of the application for amendment.
7) SUBMISSIONS OF SHRI. A. S. RAJADHYAKSHA, the learned Senior Counsel appearing for the Respondent No. 1:
(A) That the order passed by the Trial Court, rejecting the application for amendment, in the facts and circumstances of the present case, cannot be found fault with and hence, the exercise of Writ Jurisdiction of this Court is not warranted.
(B) That the application in question has been rightly styled as one under Order I Rule 10 of the CPC read with Order VI Rule 17 of the CPC. It is therefore not open for the Petitioners to contend that it is only under Order I Rule 10 of the CPC.
(C) That the amendments sought to introduce new parties, averments and add prayers cannot be justified on the ground that the averments and the prayers are only consequential to the parties being impleaded, when substantive reliefs are sought against the proposed Defendants.
5 2003 (1) Mh. L. J. 233 Page 11 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc (D) That allowing the amendments would result in a time barred claim being introduced, as the declaration sought in respect of the two Tripartite Agreements is admittedly beyond the period of three years. This is on the Plaintiffs' own showing, in terms of deposition of the Plaintiff No. 2 in her cross-examination.
(E) That the application for amendment would also have to be considered on the touchstone of Order VI Rule 17 of the CPC, after the amendment in the CPC, in the year 2002, as in the instant case, admittedly, the Trial has commenced long before the application for amendment was moved.
Reliance in support of the said contention is placed on the Judgment of the Apex Court in the case of Alkapuri Co-operative Housing Society Ltd. vs. Jayantibhai Naginbhai (deceased) through legal heirs6. The Apex Court, in the said Judgment, has observed that there cannot be any dispute as regards the Court's jurisdiction to consider an application for amendment of the pleadings, as the prayer is wide in nature, but when by reason of an amendment a third party is sought to be impleaded, not only the provisions of Order VI Rule 17 of the CPC would apply but also the provisions of Order I Rule 10 of the CPC when a new party is sought to be added keeping in view the provisions of Sub-Rule 5 of Rule 10 of Order I of the CPC, question of invoking the period of limitation would come in/end.
8) CONSIDERATIONS:
Having heard the learned Counsel appearing for the parties, I have bestowed my anxious consideration to the rival contentions. As 6 AIR 2009 SC 1948 Page 12 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc indicated in the earlier part of this Judgment, the Suit as originally filed is seeking a declaration that the Gift Deed in favour of the Defendant No. 1 dated 30th September, 1995 be declared as bogus and illegal and also for a declaration that the Plaintiffs have 1/12 th share in the properties and that the registered Will dated 1st July, 1995 executed by the said Sonabai is legal and valid and for permanent injunction. The substantive reliefs, therefore, have been sought by way of declarations in respect of the Gift Deed and the Will Deed. By the amendments, which were sought by the application, two new parties are sought to be added and averments are sought to be introduced in respect of the allotment of the plots to the Defendant No. 1, the transfer of the plots by the Defendant No. 1 to the Defendant No. 3 by the agreement dated 16th July 2008 and thereafter by the Defendant No. 3 to the Defendant No. 4 by agreement dated 12 th April 2009 and prayers are sought to be added in respect of the said agreements dated 26 th May, 2008, 16th July, 2008 and 12th November, 2009. The Plaintiffs have also sought partition in respect of the plots, which have been allotted. As indicated above, the Trial Court has rejected the application inter alia on the ground that the Plaintiffs have not been diligent in moving the application, that the declarations sought in respect of the agreements would be beyond the period of three years, that the Plaintiffs' version of they having acquired knowledge of the transfers only on 26 th July, 2013, Page 13 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc through one Munraj Puri could not be accepted in the teeth of the evidence of the Plaintiff No. 2, that the amendments, if allowed, would change the nature of the Suit, as the Plaintiffs are now claiming partition of the plots allotted, which is based on a different cause of action.
9) Insofar as the present Petition is concerned, in the context of the submission of the learned Counsel appearing for the Petitioners Shri. Kulkarni that the application would have to be considered only on the touchstone of Order I Rule 10 of the CPC, the defining aspect would be the fact that the trial in the Suit in question has already commenced.
If that be so, the entitlement of the Plaintiffs to seek amendment in the Plaint would therefore have to be considered on the touchstone of Order VI Rule 17 of the CPC. The said provision has undergone a change by virtue of the amendment, which has taken place in the year 2002 and a proviso to the said provision has been incorporated by virtue of the said amendment, which reads thus:
"17. Amendment of pleadings. - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Where, however, an application for amendment is made by the plaintiff in a suit in which the defendant has not appeared, though served with a summons, and where in the opinion of the Court the amendment applied for is a material one, the Court shall give notice of the application to the defendant before allowing the amendment; and where in the absence of the defendant the Court Page 14 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc grants any amendment in a form materially different from that of which notice has been given to the defendant, a copy of the amended plaint shall be served on the defendant."
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.
In the said context, it would also be advantageous to refer to the Judgment of the Apex Court in the case of Abdul Rehman and Anr. vs. Mohd. Ruldu and Ors.7, wherein, the Apex Court has defined the parameters for consideration of an application for amendment of the Plaint, after the trial has commenced and has laid down the matters to be considered, of which, one aspect is whether the relief claimed by way of amendment is time barred. The Apex Court has further held that if an application is made after the commencement of the trial, in that event, the Court would have to arrive at a conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. In view of the fact that the amendment application has admittedly been moved after the commencement of the trial, the mandate of Rule 17 would have to be followed, namely that the Plaintiffs would have to satisfy the Court that inspite of due diligence, they could not have moved the amendment earlier. Insofar as the said aspect is concerned, the deposition of the Plaintiff No. 2 assumes significance. The Plaintiff No. 2 has unequivocally stated in 7 2012 (11) SCC 341 Page 15 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc her cross-examination that she was having the papers of the transfers, which were effected by the Defendant No. 1 in favour of Shri. N. H. Patel (partner of Gurukrupa Enterprises) and that she became aware of the transfers three years prior to the date, on which, she deposed. The Plaintiffs have sought to justify the delay in moving the amendment application by putting forward an explanation that they were not aware of the allotment, until one Munraj Puri, who is acquainted with the allotment under the 12.5% scheme told them that the allotment of plots was deficient having regard to entitlement of the Plaintiffs and that it is thereafter that the Plaintiffs made enquiries and on making enquiries with the Sub-Registrar's office, they became aware of the transfers on 27th September, 2013. This explanation was not found worthy of acceptance by the Trial Court, on the ground that no particulars, as to when the said Munraj Puri told the Plaintiffs about the said facts, have been given and that the said explanation could not be accepted in view of the statements, which have come in the deposition of the Plaintiff No.
2. In my view, the Trial Court was right in holding that the Plaintiffs have not satisfied the due diligence test. The Trial Court has also held that the declaration sought by way of the amendments, which would be introduced in the year 2013 would be time barred, having regard to Article 58 of the Limitation Act. In view of the fact that rights have accrued in favour of the proposed Defendant Nos. 3 and 4, it is not Page 16 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc possible to accept the contention of the learned Counsel appearing for the Petitioners that the issue of limitation can be kept open for being adjudicated at the time of trial, as in the instant case, ex-facie, the relief sought by way of declaration in respect of the agreements is barred. In the light of the fact that the trial has already commenced, the submission of the learned Counsel appearing for the Petitioner that the application has to be considered giving predominance to Order I Rule 10 of the CPC, cannot be accepted. Accepting such a contention would render the provisions of Rule 17 of Order VI of the CPC otiose. Apart from the same, having regard to the well settled principles, applicable whilst considering an application for amendment, namely that in allowing the amendment, the nature of the Suit would not change and time barred claims are not introduced. If the application is considered by applying the said principles, then, the order passed by the Trial Court cannot be faulted with, as by way of the instant amendments, the Suit for declaration in respect of the Gift Deed and Will Deed is sought to be converted to a Suit seeking declaration in respect of three agreements and the relief of partition. The Plaintiffs have also sought to change their entitlement from 1/12th to 2/3rd and therefore, the finding of the Trial Court that the same would change the nature of the Suit, cannot be faulted with.
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10) Now, coming to the Judgments cited on behalf of the Petitioners i.e. in the case of Thomson Press (India) Ltd. (supra) and Amit Kumar Shaw and Anr. (supra), the said cases involve the applications made by the transferee's pendente lite for being joined as parties to the Suits filed for specific performance and whose applications were rejected. It is in the context of the fact that the transfers would be hit by Section 52 of the Transfer of Property Act, 1982. The Apex Court held that the impleadment of the transferee would be necessary for a complete and effectual adjudication of the Suit. The Apex Court, in the case of Amit Kumar Shaw and Anr.
(supra) observed that the question that would be required to be addressed by the Court was whether the enforceable right of the person, who seeks his impleadment, would be affected, if not joined. Insofar as Dhanlakshmi's case (supra) is concerned, in the said case, the issue of impleading the transferees in a partition suit, by co-owners, was the issue. In the context of the partition suit, the Apex Court held that the transferees from a co-owner are necessary and proper parties. In the instant case, it is the Plaintiffs who have applied for adding the proposed Defendants, who have acquired rights in respect of the plots in question by the agreement executed by the Defendant No. 1 in favour of the Defendant No. 3 and thereafter the Defendant No. 3 in favour of the Defendant No. 4 and are seeking to introduce averments in the Page 18 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc Plaint relating to the said transfers and seek reliefs in respect of the said transactions. Therefore, this is not a case where third parties are seeking their impleadment in the Suit so as to protect their interests.
The instant application would therefore have to be considered having regard to the well settled principles applicable after the trial has commenced i.e. the proviso to Order VI Rule 17 of the CPC. If so considered, as held by the Trial Court whilst rejecting the application, the Plaintiffs have failed to satisfy the due diligence test and that the incorporation of the amendments in the Suit would change the nature of the Suit.
11) Now, coming to the Judgment of the learned Single Judge of this Court in the case of Banu w/o. Kutubuddin Sulemanji Vimanwala and Anr. (supra), in my view, apart from the fact that the said Judgment was rendered prior to a amendment of the CPC in the year 2002, it is in the facts of the said case that probably the learned Single Judge has observed that in exceptional circumstances the Court has power even to grant a time barred amendment. In the instant case, no exceptional circumstances can be seen or made out so as to permit a time barred amendment.
Insofar as the Judgment of the learned Single Judge of this Court in the case of Krishnaji Shankar Moghe (supra) is concerned, the cause for citing the said Judgment are the observations made in Page 19 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 ::: WP.171.2014.903.judgment.doc paragraph 27 of the impugned order. In my view, it was not necessary for the learned Civil Judge Senior Division to make the said observations, as obviously, an amendment application cannot be rejected on the ground that it would entail the following of the rigmarole of the filing of the Written Statement leading of evidence etc. In my view, since the Trial Court has not deemed it fit to allow the amendments, for the reasons mentioned in the impugned order, namely i.e. the due diligence test not being satisfied and the change in the nature of the Suit, it was not necessary for the learned Civil Judge Senior Division to make such observations.
12) For the aforesaid reasons, there is no merit in the above Petition. This Court does not find any error of jurisdiction, committed by the Trial Court, in rejecting the application or any other illegality or infirmity committed by the Trial Court, for this Court to interfere in its Writ Jurisdiction under Article 227 of the Constitution of India. The Writ Petition is accordingly dismissed.
(R. M. SAVANT, J.) Page 20 of 20 J.V.Salunke,PA ::: Downloaded on - 23/04/2014 23:32:01 :::