Gujarat High Court
Gopalbhai Karsanbhai Patel vs Vinodchandra Dharamsi & 5 on 27 January, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/13608/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13608 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or
any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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GOPALBHAI KARSANBHAI PATEL....Petitioner(s)
Versus
VINODCHANDRA DHARAMSI & 5....Respondent(s)
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Appearance:
M/S ANAND ADVOCATES, ADVOCATE for the Petitioner(s) No. 1
MR PY DIVYESHVAR, ADVOCATE for the Petitioner(s) No. 1
MR AMIT V THAKKAR, ADVOCATE for the Respondent(s) No. 6
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4
UNSERVED-REFUSED (N) for the Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
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Date : 27/01/2014
ORAL JUDGMENT
1. Heard learned advocate for the petitioner and learned advocate for the respondents.
2. In present petition, the petitioner has prayed, inter alia, that:-
"9(B) Allow this Special Civil Application by quashing and setting aside the Judgment and order dated 24.12.2010 passed by the learned Principal Civil Judge in application below exhi.77 in Reg. Civil Suit No.566 of 2005 at Annexure-C and be pleased to direct to allow the amendment application under the provisions of Order-6 Rule 17 under exh.77 in Reg. Civil Suit No. 566 of 2005 pending before learned Principal Civil Judge."
3. By the impugned order learned trial Court has rejected present petitioner's application under Order 6 Rule 17 of Civil Procedure Code ('CPC' for short) on the ground that the request made by the petitioner - plaintiff vide said application dated 16.4.2010 is not maintainable in view of the proviso under Rule 17 of CPC. The petitioner- plaintiff is aggrieved by the said rejection of the application by impugned order. Hence, present petition.
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4. The petitioner herein is the original
plaintiff and the present respondents are
original defendants.
4.1 In July 2004 the petitioner -plaintiff
filed Regular Civil Suit No. 19 of 2004 which was subsequently renumbered as Civil Suit No. 566 of 2005.
4.2 In the said suit the petitioner plaintiff prayed (translation), inter alia, that:-
11 (1) As the land situated in Moje village Jokha of Ta:
Kamrej, Surat District, Sub district, bearing S.No: 118, Block No: 213, approximate area of A 4 - 14 Guntha, Akar Rs 13 - 84 paisa is under our possession and occupancy, therefore be pleased to award decree that as per special implementation of Satakhat executed on 02/02/1981 by the deceased Dharamsi Umarsi Thakkar, the Respondents no: 1 to 6 will, by accepting rest of the amount of Rs 10,000-00 as per Satakhat, execute the pakka Sale Deed.
(2) Be pleased to declare that whatever Sale Deed, Satakhat, possession receipt with regards to land mentioned in para-(11)(1) have been executed by the Respondent no: 1 to 6 in favour of Respondent no: 7 be canceled.
4.3 Thereafter, the respondent- defendant filed their reply / written statement.
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4.4 Subsequently during the pendency of the said Suit No.19 of 2004 (new number 566 of 2005) in April 2010, the petitioner - plaintiff, by invoking provisions under Order VI Rule 17 moved application dated 16.4.2010 for permission to amend the plaint.
4.5 The petitioner plaintiff sought to amend the plaint by incorporating additional paragraph No.5(A). The proposed amendment reads thus:-
"5(A) The details of land as stated in application - 5(A) are: at moje: Jokha, Ta: Kamrej, Di: Surat, block no: 213 bearing area of 4 Acre - 14 Guntha - means 1 Hectare - 76 Are. Whereas, as stated in the so called Sale Deed dated 23/04/2004 executed by the Respondent no: 7, it is for the land of 1 Hectare - 53 Are - 40 Sq.Mt. Therefore, it is found that the Sale deed of entire land bearing block no:
213 has not been executed. Under the circumstances, for the so called Sale Deed of so called date: 23/04/2004 has a bar of The Bombay Prevention of Fragmentation and Consolidation of Holdings Act (Fragmentation Act).
Therefore, under the said circumstances, the so called Sale Deed is void due to the said fragmentation Act and there is a fragmentation of land, the Respondent no: 7 is not entitled for any type of legal rights as the owner. Moreover, division of the block has also not been done as per the Fragmentation law and permission of authorities in connection of the Fragmentation Act has not been obtained before executing the said so called Sale deed.
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Therefore, the said so called Sale deed is legally Null and void and futile. Further, considering the provisions of chapter 10 (B) of The Bombay Land Revenue Code and as per section - 135 (O) (O) of The Bombay Land Revenue Code, without ledger of agriculturist, the said so called Sale deed can not be accepted for registration by the Registrar of Kamrej. Considering the said so called Sale Deed, as the procedure is carried out against 135 (O) (O), the said so called Sale Deed is legally Null and void and futile. As the Registrar is not registering the said so called Sale Deed, the said Respondent no: 7 is not getting entitled for any type of ownership rights in the said land."
4.6 The said application dated 16.4.2010 for amendment was opposed by present respondent - defendants.
4.7 After considering the application and rival contentions by plaintiff - defendant i.e. present petitioner and respondents, learned trial Court came to the conclusion that the application is hit by the proviso under Rule 17 therefore, the application is not maintainable and does not deserve to be granted.
4.8 Consequently the learned trial Court rejected the application vide impugned order dated Page 5 C/SCA/13608/2011 JUDGMENT 24.12.2010.
5. Learned advocate for the petitioner submitted that the petitioner had prayed in the suit that any document which is executed after the agreement with the petitioner may be declared as cancelled, however, the petitioner plaintiff wants to incorporate a specific prayer with reference to particular document and therefore, the plaintiff filed the application seeking amendment under Order 6 Rule 17.
5.1 Learned advocate for the petitioner submitted that the said request ought to have been granted and the petitioner should have been permitted to amend the plaintiff. He further submitted that said application under Order 6 Rule 17 and application for amendment can be made at any time / stage and such application cannot and should not be rejected only on the ground of delay.
6. The learned advocate for the petitioner - plaintiff relied on the following decisions:-
Page 6 C/SCA/13608/2011 JUDGMENT (1) Andhra Bank vs. ABN Amro Bank N.V. (AIR 2007 SC 2511) (2) Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale (AIR 2007 SC 2577) (3) Rajesh Kumar Aggarwal vs. K.K. Modi (AIR 2006 SC 1647).
7. Any other contention is not raised.
8. Learned advocate for the respondent
-defendants has relied on the impugned order dated 24.12.2010 in application under the provision of Order 6 rule 17 and submitted that the order does not suffer from any error. He further submitted that the trial has commenced and that therefore the request made by the petitioner - plaintiff is not maintainable in view of the proviso under Order 6 Rule 17 and therefore, learned trial Court has not committed any error in rejecting the application filed by the petitioner - plaintiff.
9. I have heard learned advocate for the Page 7 C/SCA/13608/2011 JUDGMENT petitioner and respondents. I have also considered the record of present petition including plaint of the suit, application under Order 6 Rule 17 and the impugned order.
10. It has emerged from the record, more particularly from the plaint that the petitioner plaintiff has filed the suit for specific performance.
10.1 The said suit has been filed on the basis of and on the strength of document dated 2.2.1981 said to have been executed by the respondents - defendants and direction - decree for specific performance of the said deed is prayed for. 10.2 It is also relevant that in the said suit for specific performance the legality and validity of the deed dated 23.4.2004 is expressly not challenged and any specific challenge expressly against the sale deed dated 23.4.2004.
10.3 By way of the said application dated
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16.4.2010 the petitioner alleged that the
respondents - defendants have executed a document dated 23.4.2004 in favour of the respondent No. 7 and it is contrary to provision under Bombay Prevention of Fragmentation and Consolidation of Holding Act (hereinafter referred to as the "Act"). The petitioner- plaintiff requested for permission to amend the plaint by adding above quoted paragraph No. 5 -A in the plaint. 10.4 In order to appreciate the grievance made by petitioner-plaintiff it is relevant to take into account provision under Order VI Rule 17 of CPC which reads thus:-
"17. Amendment of Pleadings.- The Court may at any stage at 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."
10.5 Before proceeding further it is relevant to Page 9 C/SCA/13608/2011 JUDGMENT mention that in the application dated 16.4.2010 the petitioner did not claim and did not assert that the facts / details which the petitioner wants to add in the plaint were not within the knowledge of, and were not known despite due diligence by the petitioner - plaintiff when the suit was filed.
10.6 Actually it emerges from the record, more particularly from the plain reading of the plaint itself as well as from the said application dated 16.4.2010 and so also from the submissions of learned advocate for the petitioner plaintiff, that even before the suit came to be filed and even at the time when the suit was actually filed and also during entire interregnum (i.e. from the date of filing of the suit until date on which the application came to be filed) the details which the petitioner - plaintiff now wants to introduce was known to and was within the knowledge of the petitioner - plaintiff.
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10.7 It is also not the case of the petitioner - plaintiff that despite due diligence the details which are now sought to be introduced were not known to and not within the knowledge of the petitioner - plaintiff. This aspect also becomes clear and apparent from the submission and details mentioned in paragraph No.7 of the plaint. The said paragraph No. 7 of the plaint reads thus:-
"(7) The cause of the suit has arisen at the relevant time and thereafter when the deceased Dharamsi Umaramsi executed the Satakhat by accepting certain consideration money and handing over possession, thereafter by not following as per the Satakhat, in spite of the Respondents were frequently told to get the land converted in to old tenure. At last, as the Respondents gave evasive answer regarding the land on 10/07/2004 and on inquiring by us the Plaintiffs, it is found at present that the Sale deed of the same land has been already executed on 23/04/2004. Therefore, the suit is not time-
barred."
10.8 Thus, from the said averments it becomes clear that when the petitioner plaintiff filed the suit he was aware about the document dated 23.4.2004.
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10.9 However, despite being aware about the
document petitioner / plaintiff did not raise any contention and / or did not challenge the said document on any ground much less on the ground on which it is now sought to be assailed. At the time of filing the suit the plaintiff did not seek any relief against the said document. Differently put, the plaintiff consciously did not challenge the document and did not pray for any relief against the said document and consciously waived his right to set-up any challenge on any ground whatsoever against the said document.
10.10 It appears that now plaintiff petitioner wants to assail the said document by invoking provisions under Bombay Prevention of Fragmentation and Consolidation of Holding Act.
11. Before proceeding further it is relevant to take into account certain dates:
(A) The suit came to be filed in July 2004.
Page 12 C/SCA/13608/2011 JUDGMENT (B) The disputed document was executed 3 months before the date on which the suit came to be filed inasmuch the said document was executed on 23.4.2004.
(C) The petitioner - plaintiff was aware about said document when the suit was filed. (D) In the suit proceedings learned trial Court framed issues on 29.2.2008.
(E) The application under Order VI Rule 17 came to be filed 2 years' after the Court framed the issues inasmuch as the application came to be filed in April 2010.
12. In this view of the matter, learned trial Court considered proviso of Rule 17 of Order VI.
13. In this context it is relevant to recall that in the above mentioned suit issues came to be framed on 29.2.2008. Thus, for the purpose of said proviso trial commenced when the Court Page 13 C/SCA/13608/2011 JUDGMENT framed the issues i.e. on 29.2.2008 whereas the application is made on or around 16.4.2010. 13.1 It is also necessary, appropriate and pertinent to recall that it is not even the case of the petitioner - plaintiff that at the time when the suit was filed and / or before the date on which the application seeking amendment came to be filed, the details which are now sought to be introduced were not known to the petitioner - plaintiff despite exercise of due diligence. 13.2 On the contrary learned advocate for the petitioner has admitted the fact that all details and facts about the said document dated 23.4.2004 was known to the petitioner - plaintiff even when the suit was filed in July 2004 and during entire interregnum before the issues came to be framed and before the trial commenced.
13.3 Thus, now 2 years after the Court framed the issues, the plaintiff came forward with request to amend the plaint so as to add a relief which Page 14 C/SCA/13608/2011 JUDGMENT was, until then, not prayed for by challenging the document which is not sought to be challenged. The document in question was available with and within the knowledge of the plaintiff and yet it was not challenged and any relief was not prayed for and now 2 years after the Court framed issues and after trial commenced a claim which was consciously not made and a challenge to the document which was never raised and the relief which was consciously not made / prayed for, is sought to be made by seeking amendment in question. If the request is granted it would amount to allowing the petitioner to introduce a challenge to a document which, though within the knowledge of and in possession of the plaintiff, was not raised. By virtue of provision under Order 2 Rule 2 the suit should include whole claim. Since the particular challenge was not raised and any relief was not prayed against the document dated 23.4.2004 it amounts to relinquishing that portion of the claim.
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13.4 In background of such facts and in light of the relevant provision, learned trial Court has observed in the order that:-
"(5) In this case, considering fact of the reply and application and arguments advanced by Ld. Advocates of both parties and provisions of CPC order - 6 rule - 17, firstly it is required to mention such fact that as per CPC order - 6 rule - 17, the Court at any stage of the case, can make any amendment necessary for judicial decision on the basis of the application of any party.
But, after beginning of trial of the case, the Court can not give permission for filing application for any amendments unless the Court comes to such conclusion that in spite of the party was vigilant and careful, the party could not produce the fact. On perusing CPC order - 6 rule
- 17, as per this provision, there has been extensive power vested on the Court that if any amendment is necessary for judicial decisions of the disputed issues among the parties, the Court can grant permission for amendment at any stage of Court proceedings but the condition is only such that the Court can not grant such permission after trial of the Court has began. Such provision has also been made therein that if the Court comes to such conclusion that although there was perseverance and vigilance, the party had failed to produce prior to beginning of trial - means after beginning of trial also if the Court feels such to be appropriate and justifiable, the Court can approve such amendment.
(6) In this case, if the amendment done at Ex - 77 produced for the Plaintiff is considered, the said amendment application has been made from Plaintiff side in the year 2010 and present suit has been filed in the year 2004. In this case, the issue at Ex - 54 has been framed on 29/02/2008 from the Court and the said issue was recast also on 20/03/2009. Further, the said case has been frequently adjourned on 20/03/2009 for the Evidence of Plaintiff and bunch of applications has been made from Plaintiff's side for producing evidence but the evidence has not been produced till date. Such fact is important here as to whether the amendment sought from Plaintiff is important at present stage for the judicial decision of the present suit ? If it is considered with reference to the said fact, the Plaintiff has, in para - 11(2) of his Suit application, mentioned about the same suit Sale Deed in his prayer and since beginning, the dispute of the Plaintiff is regarding Sale deed of the suit land executed for the Respondent no: 7 being futile. The said fact has Page 16 C/SCA/13608/2011 JUDGMENT been stated in point no: 4 of Ex - 54 - means the prayer regarding the amendment sought by the Plaintiff is already there in the Suit Application. Further, such is to be believed that the issues are framed in this case on 29/02/2008 and trial has begun after framing of the issues. Such an argument that if the Plaintiff is not producing the evidence for years and he submits such a defence before the Court that beginning of evidence of the Plaintiff means beginning of trial can not be accepted. Because, in any case, if the issue has been framed, then it can be considered that the trial has begun. The Sale Deed for which the permission has been sought from the Plaintiff for its rejection and amendment to be made accordingly is prior to the present suit. The Plaintiff knew entire facts before the present suit was filed, therefore in detailed meaning the Plaintiff can not avail the benefit as per CPC order - 6 rule - 17 and the case of the Plaintiff absolutely falls under the proviso of CPC order - 6 rule - 17. The present application has been made by the Plaintiff, only with the malafide intention of making delay in the case and therefore, as this application is not liable to be granted, the below given final order is passed."
13.5 It emerges from the said observation by learned trial Court that the learned trial Court has taken into account the fact that:-
(a) The fact which is now sought to be introduced was known to and within the knowledge of the plaintiff;
(b) Until the issues came to be framed the petitioner - plaintiff did not take any steps to amend the plaint;
(c) Even thereafter i.e. even after issues were framed petitioner - plaintiff did not Page 17 C/SCA/13608/2011 JUDGMENT take any steps for almost two years to amend the plaint when the application came to be filed in July 2012.
(d) The petitioner - plaintiff has also not made out any special circumstance or has not made out any special or compelling ground to satisfy the Court that the amendment at such stage i.e. after issues are framed, the permission to amend the suit deserves to be granted.
14. It is also relevant to note and pertinent to mention that actually by way of proposed amendment the petitioner not only wants to add facts / details - which were very much known to and within the knowledge of the petitioner - but the petitioner also wants to add new and additional ground of challenge which was never raised until now i.e. until the application came to be preferred two years after the Court framed the issued.
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14.1 Therefore the proposed amendment will not only introduce new fact but will introduce new ground and it will also take away a benefit accrued to the defendant and consequently will affect the interest of the defendant adversely. 14.2 Thus, the proposed amendment does not pass the condition which is prescribed by the proviso of Rule 17 of Order VI. According to Rule 17 of Order VI ordinarily the Court may permit either party to amend the pleadings on such terms as may be just however, the Court shall, ordinarily, not allow any application for amendment after trial has commended.
14.3 Such application may be granted by the Court only if the Court comes to the conclusion that in spite of due diligence the party could not raise the matter before commencement of trial. The proviso of Rule 17 of Order VI postulates that after the trial has commenced, ordinarily, application for amendment of pleadings shall not Page 19 C/SCA/13608/2011 JUDGMENT be allowed. Said proviso also prescribes an exception viz. satisfaction of the Court that the matter could not be raised and request could not be made before commencement of trial despite due diligence. Consequently it would be necessary for the applicant to establish that the amendment which he seeks to incorporate, after the trial commenced, could not be incorporated at the time of submission of pleadings or before commencement of trial despite due diligence. Furthermore, the Court will have to record its satisfaction and conclusion about such claim and assertion by the claimant and the Court would be obliged to record its satisfaction. Meaning thereby there must be application of mind as to the circumstances and facts mentioned in the application and judicious satisfaction as regards such claim and assertion. So far as facts of present case are concerned it has emerged that the issues were settled on 29.2.2008 whereas the application under order VI Rule 17 came to be made in April 2010 i.e. about Page 20 C/SCA/13608/2011 JUDGMENT two years after issues were framed. Furthermore, facts of the case have also brought out that there is gross and conspicuous absence of due diligence on part of applicant - plaintiff. 14.4 On the contrary in present case the petitioner has categorically admitted that the facts / details sought to be introduced by way of proposed amendment were very much known to and within the knowledge of the petitioner. 14.5 From the said submission and admission of the petitioner, it also follows that additional / new ground of challenge sought to be introduced by way of amendment, which, incidentally, is raised in light of the provisions contained under the Bombay Prevention of the Fragmentation and Consolidation of Holdings Act, 1947 and that therefore it could have been and ought to have been raised at the time when the application was filed and in any case before the issues were framed and trial commenced.
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14.6 However, the plaintiff did not do so. 14.7 The above mentioned facts, more particularly the fact that for long time even after the issues were framed i.e. for almost 2 years' after issues were farmed the petitioner did not take any steps also establishes that the petitioner consciously did not raise the contention which is now sought to be raised by way of proposed amendment.
15. In this view of the matter and such facts and circumstances and in light of the 2nd Proviso of Rule 17 the observation and decision by learned trial Court cannot be faulted.
16. The learned advocate for the petitioner relied on the decision in case of Andhra Bank (supra). The facts of the cited case are different from the facts involved in present case. In the said case the issue as to whether the amendment in the plaint can be allowed after the trial has commenced, though the petitioner Page 22 C/SCA/13608/2011 JUDGMENT has not made out any special ground to satisfy the Court that despite due diligence the plaintiff could not raise the matter before the trial commenced was not under consideration before Hon'ble Apex Court in the cited decision. In the said decision the issue whether the amendment by the parties to the said proceedings can be allowed after trial is commenced even though the applicant himself admits that facts / details sought to be introduced by way of proposed amendment were known to him and within his knowledge when he filed the suit. Therefore, the said decision does not help the petitioner in present case 16.1 Likewise, in the decisions in case between Ramchandra Sakharam Mahajan (supra) and Rajesh Kumar Aggarwal (supra) also the issue as to whether the amendment prayed for by the parties to the suit proceeding can be allowed after trial has commenced, even though the applicant admits that the facts / details sought to be introduced Page 23 C/SCA/13608/2011 JUDGMENT by way of proposed amendment were known to him and were within his knowledge, when he filed suit, and that therefore the said decision also does not help the petitioner.
17. Having regard to the aforesaid aspects, learned advocate for petitioner has failed to make out any case to interfere with the impugned order.
17.1 It cannot be said that the impugned order dated 24.10.2010 passed by learned trial Court suffers from any infirmity or any error of law or jurisdiction.
17.2 It also cannot be said that learned trial Court has committed any material irregularity in exercising jurisdiction or that that the impugned order is perverse.
17.3 No case for interference is made out.
Hence, the petition fails and accordingly rejected. Notice is discharged.
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Sd/-
(K.M.THAKER, J.)
Suresh*
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