Bombay High Court
Anupama Ranjit Patil And Others vs Bhalchandra Onkar Patil And Another on 15 December, 2020
Equivalent citations: AIRONLINE 2020 BOM 3221
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6669 OF 2020
1) Anupama w/o Ranjit Patil,
Age 51 years, Occ. Household,
R/o. Plot No. 23, Bhalchandra Sankul,
Ramdas Colony, Canada Corner,
Nashik, Tq. & Dist. Nashik.
2) Rutika d/o Ranjit Patil,
Age 29 years, Occ. Service,
R/o. As above.
3) Vruddhi d/o Ranjit Patil,
Age 25 years, Occ. Education,
R/o. As above. ... Petitioners.
VERSUS
1) Bhalchandra Onkar Patil,
Age 87 years, Occ. Agril. &
Doctor.
2) Kusum w/o Bhalchandra Patil,
Age 78 years, Occ. Agriculture.
Both r/o. "Vaishali" Vivekanand
Nagar, Bhadgaon Road, Pachora,
Tq. Pachora, Dist. Jalgaon.
At present C/o. Dr. Ranjit Jagtap,
A-24, Padmavilas Enclave, Near
Shindechhatri,Wanwadi,
Pune-411 040. ... Respondents.
...
Advocate for the Petitioners : Mr. Shailesh P. Brahme.
Advocate for the Respondents : Mr. N.B. Khandare, h/f Mr. M.S. Deshmukh.
CORAM : MANGESH S. PATIL, J.
DATE : 15.12.2020.
ORAL JUDGMENT :
Heard. Rule. The rule is made returnable forthwith. With the 1/6 ::: Uploaded on - 16/12/2020 ::: Downloaded on - 17/12/2020 04:44:26 ::: 926 wp 6669 20.odt consent of both the sides the matter is heard finally at the stage of admission.
2. By way of this petition the petitioners who are the original defendants are impugning two orders passed by the Trial Court on application (Exh. 48) allowing the application preferred by the respondents/plaintiffs calling upon the petitioners to produce the will of deceased Ranjit being propounded by the petitioners and regarding which the respondents have been seeking a declaration of it being void. The petitioners are also impugning the order passed on the application of respondents (Exhibit 53) preferred under Order VI Rule 17 of the Code of Civil Procedure seeking amendment of pleadings.
3. Learned advocate Mr. Brahme for the petitioners submits that the respondents who happen to be the parents of the deceased Ranjit have filed this suit claiming right and share in the suit properties and seeking declaration that the will being propounded by the petitioners is void. He submits that in fact it is the other son of the respondents who has staged this litigation and is acting behind the curtains. He has criminal antecedents and if the original will is produced on the record there is every possibility of it being tampered with. He therefore submits that the direction to produce the original will passed by the impugned order does not take care of all these facts and circumstances and the order is illegal.
4. As far as the application (Exhibit 53) for amendment of the pleadings is concerned, the learned advocate Mr. Brahme by referring to the decision in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and others; 2009 (10) Supreme Court Cases 84 submits that oblivious to the guidelines laid down in this decision the impugned order allows the amendment to be carried out which is absolutely unnecessary. He would point out that the purchasers of suit properties pendente lite are sought to be impleaded with a further prayer seeking the proceeding initiated by them under Section 44 of the Maharashtra Land Revenue Code for conversion of 2/6 ::: Uploaded on - 16/12/2020 ::: Downloaded on - 17/12/2020 04:44:26 ::: 926 wp 6669 20.odt use of some of the suit properties is sought to be declared as illegal.
5. By referring to the decision in the case of Kachhi Properties Vs. Ganpatrao Shankarrao Kadam; 2010(5) Mh.L.J. 903 and Pralhad Jaganath Jawale & ors. Vs. Sitabai Chander Nikam & Ors; 2011(4) Mh.L.J. 137 the learned advocate would submit that since Section 52 of the Transfer of Property Act, takes care of the persons having interest in the property who are parties to the litigation, presence of the purchasers during pendency of the suit is not necessary. The decree that may be passed would still be binding upon these purchasers pendente lite and even they cannot obstruct the execution.
6. He would then submit that it is not that the purchasers are coming forward seeking their own impleadment but it is the respondents/plaintiffs who are now praying for adding them as respondents. The scenario in both the cases is different. Possibly a purchaser may have some apprehension that his vendors may not be protecting his interest in the suit but as far as a plaintiff is concerned he may not entertain any such apprehension and without impleading the purchasers he can still obtain a decree and get it executed even against such purchasers who are claiming through a party to the suit.
7. Learned advocate Mr. Brahme would then submit that when the jurisdiction of a Civil Court is barred under Section 11 of the Bombay Revenue Jurisdiction Act 1876 in the matters of change of user under Section 44 of the Maharashtra Land Revenue Code, the proposed amendment seeking a declaration in that respect ought not to have been allowed. By referring to the decision in the case of Dilip Murlidhar Lohiya Vs. Mohd. Azizul Haq Mohd. Abdl Haq; 1990 Mh.L.J. 249 he would submit that in an eviction suit filed under the Provincial Small Cause Courts Act, 1867, when the defendants/tenants sought amendment to include a prayer for temporary injunction which was barred by law, the amendment was 3/6 ::: Uploaded on - 16/12/2020 ::: Downloaded on - 17/12/2020 04:44:26 ::: 926 wp 6669 20.odt refused.
8. The learned advocate Mr. Brahme therefore submits that both the orders impugned in this petition being illegal be quashed and set aside.
9. The learned advocate Mr. Khandare for the respondents at the out set submits that the petition in fact has become infructuous. Already the proposed amendment has been carried out pursuant to the impugned order. The parties have been impleaded and there remains nothing to be rectified. Necessary issues can be framed including regarding jurisdiction of the civil Court in granting declaration qua change of user under Section 44 of the Maharashtra Land Revenue Code vis a vis Section 11 of the Bombay Revenue Jurisdiction Act.
10. The learned advocate Mr. Khandare would then submit that since the respondents are seeking declaration to the effect that will of Mr. Ranjit being propounded by the petitioners is void, it is imperative for even the Court to see to it that the original will comes on record. This is what has been directed by the learned Judge by the impugned order passed on the application (Exh. 48). He would further point out that all the necessary precautions have been taken by the learned Judge before directing such production of the original will. It is only the copies duly verified by the Nazir of the Court which are directed to be produced and the original has been directed to be kept in the custody of the Nazir.
11. So far as the application regarding amendment is concerned the learned advocate Mr. Khandare submits that since the petitioners have alienated some of the suit properties during pendency of the suit the purchasers have been sought to be arrayed. It is not that they are being simply arrayed as formal parties but even a relief of declaration as well as injunction is being claimed against them since they are proposing to convert the use of the suit properties purchased by them and are likely to obstruct possession over the suit properties. Since the amendment has already been 4/6 ::: Uploaded on - 16/12/2020 ::: Downloaded on - 17/12/2020 04:44:26 ::: 926 wp 6669 20.odt incorporated pursuant to the impugned order and even the purchasers have filed written statement, it would be appropriate to allow the learned Civil Judge to go ahead with the trial and decide all the issues arising from such amendment.
12. Having considered the rival submissions and the perusal of the impugned orders, as far as the order passed on the application (Exh. 48) is concerned, one need not delve much and it would be suffice to note that the respondents are specifically seeking a declaration about voidability of the will being propounded by the petitioners. Obviously the original document has to be on the record the custody of which the petitioners specifically admit. The only apprehension being expressed by the petitioners about a possible tampering has been taken care of by the learned Judge by issuing directions to keep the original in the custody of Nazir of the Court and allowing only the attested copies to be available on the record and to the parties. Apparently, there is no illegality in issuing such direction.
13. So far as the proposed amendment is concerned, apart from the fact that already it has been incorporated and even the purchasers have filed written statement pursuant to the proposed amendment, in fact it is apposite that no observations are made touching the legality or otherwise of the proposed amendment particularly touching the aspect of the jurisdiction. It is trite that a self same Court before which an objection as to the jurisdiction is raised is competent to decide it. If that be so, when the amendment has already been incorporated, it would be always open for the concerned Court to frame appropriate issue based on the pleadings including the one touching the aspect of jurisdiction and decide it.
14. It is to be borne in mind that it is not that the purchasers are being sought to be impleaded without any further relief being claimed against them. In addition to such impleadment, by the proposed amendment the respondents are seeking relief of declaration and injunction against these 5/6 ::: Uploaded on - 16/12/2020 ::: Downloaded on - 17/12/2020 04:44:26 ::: 926 wp 6669 20.odt purchasers. Whether in the final trial they would succeed in getting the declaration and injunction is a matter which cannot be prejudged. It would be appropriate to allow the learned Civil Judge to ponder upon it by extending an opportunity to both the sides to lead evidence.
15. The decision of the coordinate Benches of this Court in case of Kachhi Properties (supra) and Pralhad Jawale (supra) do not relate to the matter in controversy. The issue as to if the proposed amendment under Order VI Rule 17 and under Order I Rule 10 of the Code of Civil Procedure for impleading the purchasers pendente lite was not directly and substantially in issue before either of these Benches. The orders for temporary injunction being claimed against a purchasers pendente lite were the matters in dispute before these Benches and the scope of such a prayer for injunction under Order XXXIX Rule 1 vis a vis the provision of Section 54 of the Transfer of Property Act were decided. The petitioners are not entitled to derive any benefit from these decisions.
16. True it is that in the case of Dilip Lohiya (supra) the proposed amendment seeking injunction which was contrary to the specific bar contained under Section 7 of the Code of Civil Procedure and Section 16 of the Provincial Small Cause Courts Act, was refused. But when admittedly, the amendment has already been carried out and even the matter has proceeded further wherein the written statement has also been filed, it would not be proper to decide the issue as to the jurisdiction in this Writ Petition.
17. The Writ Petition is dismissed. The Rule is discharged.
(MANGESH S. PATIL, J.) mkd/-
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