Bombay High Court
Gangubai Baban Kadam And Another vs Dr.Vidya Vijay Joshi on 23 September, 2014
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
1 Writ Petition No.3555 of 2014
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3555 OF 2014
Gangubai Baban Kadam and another Petitioners
Versus
Dr.Vidya Vijay Joshi Respondent
Mr.N.C.Garud, Advocate for the petitioners.
Mr.Sandeep S.Deshmukh, Advocate for respondent.
ig ( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 23/09/2014
ORAL JUDGMENT :
1. Heard the learned Advocates for the respective sides. Rule.
Rule made returnable forthwith. Heard finally by the consent of the parties.
2. The petitioners are aggrieved by the impugned order dated 11/03/2014 passed by the 2nd Joint Civil Judge, S.D. Ahmednagar below Exh.48 in RCS No.204/2010.
3. The petitioner is the original plaintiff. The suit is filed for declaration and injunction based on the contention that the Sale Deed is a nominal Sale Deed. The same was executed in favour of the deceased Vijay Joshi only for the sake of surety.
::: Downloaded on - 29/09/2014 23:48:32 ::: 2 Writ Petition No.3555 of 20144. An application Exh.48 was preferred by the petitioner before the Trial Court seeking amendment under order 6 Rule 17 of the Civil Procedure Code, 1908. After hearing the litigating parties, the said application came to be rejected by the impugned order.
5. Contention of the petitioner is that the deceased Vijay Joshi and his wife were the persons with whom the plaintiff had signed a nominal Sale Deed and that was executed in favour of deceased Vijay and his wife. However, since the said Vijay Joshi passed away due to illness, the suit was filed against his widow respondent Dr.Vidya Vijay Joshi. Pleadings were completed. The issues were cast. Evidence was lead by both the sides and finally recording of evidence was completed.
6. Thereafter, when the matter was posted for advancing oral submissions, which was the culminating point in the Trial Court, the petitioner preferred application Exh.48 seeking leave to add the 2 sons of the defendant widow namely Ojas and Rajas.
7. Contention is that the said 2 sons, being the legal heirs of the defendant, are necessary parties and are required to be arrayed as defendants. Rejection of the said application would lead to mis-
carriage of justice. Multiplicity of litigation would arise out of the ::: Downloaded on - 29/09/2014 23:48:32 ::: 3 Writ Petition No.3555 of 2014 said rejection. The decree, in the event the suit is allowed, would not be enforceable against the legal heirs of the defendant Vidya and therefore the impugned order is bad in law.
8. It is further contended that the application was filed under Order 6 Rule 17 of the C.P.C., seeking amendment. The petitioners in fact desired to invoke order 1 rule 10(2) of the C.P.C. The impugned order, is a result of non-application of mind by the Trial Court. Provisions of the C.P.C. have not been properly appreciated.
Reliance is placed upon the judgment of the Apex Court in the case of State Bank of India Vs.Gracure Pharmaceuticals Ltd., reported at 2014(4) Mh.L.J.20. It is, therefore, prayed that the petition be allowed. The impugned order be quashed and set aside and application Exh.48 be allowed.
9. Mr.Deshmukh, learned Advocate appearing on behalf of the respondent submits that in the written statement itself, it was pointed out that the respondent defendant has 2 sons. The plaintiff could have moved an application pursuant to filing of the written statement and could have made a request to add the 2 sons as defendants, notwithstanding that such a request was unwarranted and untenable. The sale deed was signed by the plaintiff with deceased Vijay as well as with the defendant Dr.Vidya.
::: Downloaded on - 29/09/2014 23:48:32 ::: 4 Writ Petition No.3555 of 201410. It is further submitted that even when the issues were framed on 24/02/2011, the petitioner did not make any request for addition of parties. Thereafter, additional issues were cast on 11/12/2012 wherein issue No.5 was specifically framed as "Whether the suit is bad for non-joinder of necessary parties ?" Even at that stage, the petitioner did not seek such an addition. Thereafter, the litigating parties led evidence.
11. He further states that the petitioner has filed a closing purshis after the recording of evidence was over. The respondent/defendant also closed her evidence by filing a purshis. The stage in the matter was for the litigating parties to advance oral submissions and thereafter was to be followed by the judgment of the Court. After the trial was complete, the petitioner has chosen to file an application, which is otherwise untenable in Law, in as much as, unwarranted and therefore rightly rejected.
12. It is further submitted that the application was filed under Order 6 Rule 17 of the C.P.C. which is a provision to be invoked for amendment, either in the plaint or the written statement. The said provision by itself is clear and does not in any way suggest rectification or correction or addition of a party. The petitioner has ::: Downloaded on - 29/09/2014 23:48:32 ::: 5 Writ Petition No.3555 of 2014 filed the application under Order 6 Rule 17 of the CPC and in the course of his submissions today, Order 1 Rule 10 of the C.P.C. has been relied upon. It is stated that since the defendant widow was signatory to the sale deed, the suit has to proceed as against the defendant only and more so since the petitioner has chosen not to act even after framing of the issues. It is, therefore, prayed that the petition be dismissed.
13. Order 6 Rule 17 of the C.P.C. reads as under :-
"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 questions in controversy between the parties;
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."
14. Order 1 Rule 10 of the C.P.C. reads thus :-
"Suit in name of wrong plaintiff : Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistaken, ::: Downloaded on - 29/09/2014 23:48:32 ::: 6 Writ Petition No.3555 of 2014 and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just."
15. The application Exh.48 filed by the petitioner does not put forth any justification on several counts. Firstly, as to what were the circumstances that prevented the petitioner from moving the said application prior to framing of the issues or even immediately thereafter. Secondly, after the petitioner received the written statement in which it was made known to her that the defendant has 2 sons, she did not take steps to add them as defendants.
16. Thirdly, even in the evidence recorded before the Court, the reference to the 2 sons of the defendant was made though the said aspect may not be as important as is the stage, at which the petitioner gathered knowledge about the 2 sons of the defendants.
The application is also silent on the aspect as to whether there were any circumstances which precluded the petitioner from adding 2 sons of the defendants to the proceedings. Similarly, the application does not offer any justification as to why are the 2 sons of the defendants necessary and required for the adjudicatory process.
::: Downloaded on - 29/09/2014 23:48:33 ::: 7 Writ Petition No.3555 of 201417. I find that in application Exh.48, the plaintiffs have plainly stated that because the 2 sons are the legal heirs of the deceased Vijay, they need to be arrayed as defendants to avoid a technical defect in the plaint. Addition of a party to a proceeding is not a formality. When the issue boils down to a necessary and proper party, it ought to be justified as to how would the absence of the said parties prevent the Court from arriving at a proper conclusion and as to whether the trial in the proceedings would suffer on account of non addition of the said parties. Application Exh.48 apparently is silent on all these aspects.
18. The respondent had opposed the application on the ground that it was time-barred and more so, in view of the fact that recording of evidence was also over and the stage was for advancing oral submissions. The learned Trial Court has considered the rival submissions and has come to a conclusion that though the suit was filed in the year 2010 and the defendant had taken a plea that the suit is bad for non-joinder of necessary parties, the petitioners were silent and did not take any steps. In the cross-examination of plaintiff No.2, he admitted that he was aware about the existence of 2 sons of the defendant namely Ojas and Rajas before filing the suit.
Even thereafter the petitioner has not taken steps.
::: Downloaded on - 29/09/2014 23:48:33 ::: 8 Writ Petition No.3555 of 201419. The Trial Court has come to a categorical finding that the plaintiffs have not shown due diligence and have remained silent till conclusion of recording of oral evidence. Reliance is placed upon the judgments of the Apex Court in the case of Vidyabai and others Vs. Radmalatha and another, reported in [2009(4) Mh.L.J.30.
20. This Court, in the matter of Barkatali Abdul Razzak Kazi and others Vs. Manzoor Abdul Razzak Kazi and another, 2014(5) Mh.L.J. 45, has considered the issue of due diligence as well as the scope of order 1 Rule 10 and Order 6 Rule 17 of the C.P.C. Paragraph Nos. 9 and 10 of the said judgment are relevant to this case. The same read as under :-
"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 ::: Downloaded on - 29/09/2014 23:48:33 ::: 9 Writ Petition No.3555 of 2014 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 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 ::: Downloaded on - 29/09/2014 23:48:33 ::: 10 Writ Petition No.3555 of 2014 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 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 ::: Downloaded on - 29/09/2014 23:48:33 ::: 11 Writ Petition No.3555 of 2014 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 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 ::: Downloaded on - 29/09/2014 23:48:33 ::: 12 Writ Petition No.3555 of 2014 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.
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 ::: Downloaded on - 29/09/2014 23:48:33 ::: 13 Writ Petition No.3555 of 2014 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 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."
21. In the instant case, application Exh.48 does not even whisper about due diligence or as regards circumstances, which prevented the petitioner from either adding the 2 sons of the defendant as defendant Nos. 2 and 3 or moving an application at the earliest possible to amend the cause title and add the 2 sons as defendants.
The view taken by this Court in the Barkat Ali case (supra), therefore, lays down the fetters on amending the plaint and that too at a stage when the parties were to advance oral submissions after conclusion of the trial.
22. In the matter of Jayashree Subhash and another Vs Bhaurao ::: Downloaded on - 29/09/2014 23:48:33 ::: 14 Writ Petition No.3555 of 2014 Darekar and others, reported at 2014(3) of All MR 605, this court, though while dealing with an amendment to the written statement, has dealt with the issue of absence of due diligence. The conclusion arrived at in the said judgment, which places reliance upon the reported judgments of this Court as well as of the Apex Court is that an amendment ought not to be allowed if negligence or laxity is visible from the conduct of the party seeking an amendment.
23. Considering the reported judgments cited, this Court in Jayashri's case (supra) has held in paragraph No.9 as follows :-
"In the judgment delivered in W.P.No.722/2012 and connected matters on 25/09/2013, after taking into consideration the various decisions of the Apex Court and of this Court, the law on due diligence has been summarized in paragraph 87 as under;
87. The law on "due diligence" developed till this date is summarized as under :
(a) "Due diligence" means careful and persistent application and effort. It means the diligence as a prudent man would exercise in the conduct of his own affairs. Unless the party takes prompt steps, mere action cannot be accepted after the commencement of the trial. The due diligence determines the scope of party's constructive knowledge of the claim. It is a kind of reasonable investigation, which is necessary before claiming the relief.
(b) The due diligence is distinct from ignorance. In spite of ::: Downloaded on - 29/09/2014 23:48:33 ::: 15 Writ Petition No.3555 of 2014 knowledge, ignorance by a party or an Advocate cannot be a matter of due diligence. The neglect to perform an action, which one has an obligation to do cannot be called as a mistake.
(c) The degree of prejudice to the other side by an amendment after the commencement of the trial is greater than one at pre-trial stage.
(d) Without recording finding on the question of due diligence, the Court shall not get jurisdiction either to allow or disallow an amendment in the pleadings after the commencement of the trial.
(e) The Court while allowing an amendment must record a finding that in spite of due diligence, the party could not have raised the matter before the commencement of the trial or that the events sought to be brought on record by way of an amendment have occurred subsequent to the commencement of trial.
(f) The facts and grounds in the application for amendment must be clearly stated to bring out a case that the delay caused was beyond the control and diligence of the party proposing amendment.
(g) Where a party had acted with due diligence or not, would depend upon the facts and circumstances of the case and no hard and fast rule or strait-jacket formula can be laid down."
24. In the SBI Judgement (supra) cited by the plaintiff, the issue was as regards different claims made and the Apex Court concluded that the object of Order 2 Rule 2 was to avoid multiplicity of proceedings and not to vex the parties over and again in a litigating ::: Downloaded on - 29/09/2014 23:48:33 ::: 16 Writ Petition No.3555 of 2014 process. One of the litigating parties had sought to split the cause of action into parts by filing separate suits. Different courts were dealing with separate suits between the same parties and in respect of the same suit property. It is in this backdrop that the Apex Court concluded that all such suits could be clubbed together in order to fulfill the object of Order 2 Rule 2 of the C.P.C. The facts of the case before me are distinguishable from those emerging from the S.B.I. Case (supra).
25. In the light of the above, I am unable to accept the contention of the petitioners that an application for addition of parties filed after conclusion of recording of oral evidence and in the absence of any justification as well as due diligence, could have been entertained by the Trial Court. Cogent reasons have been assigned by the Trial Court while arriving at its conclusions.
26. The Apex Court (5 Judges Bench), while dealing with the case of Syed Yakoob Vs.K.S.Radhakrishnan and others, reported at AIR 1964 SC 477 and in the case of Surya Dev Rai Vs. Ram Chander Rai, reported at 2003(6) SCC 682 has held that the supervisory and writ jurisdiction of this Court is to be exercised only if grave injustice and irreparable hardships are caused to the petitioners.
::: Downloaded on - 29/09/2014 23:48:33 ::: 17 Writ Petition No.3555 of 201427. Paragraph Nos. 8 and 9 of the Syed Yakoob Judgment (supra) and similarly paragraph Nos. 38(1 to 9) and 39 of the Surya Dev Rai judgment (supra) clearly lay down the law that merely because another view is possible, would not mean that the impugned order is perverse.
28. In these circumstances, I do not find that the impugned order of the Trial Court is either perverse or erroneous. The writ petition, being devoid of merit, is therefore, dismissed. Rule is discharged.
No order as to costs.
( RAVINDRA V. GHUGE, J.) khs/Sept. 2014/3555-14 ::: Downloaded on - 29/09/2014 23:48:33 :::