Babarao S/O Pandhurangji Patil And ... vs Sau. Kalavati W/O Rambhauji And Others on 4 February, 2019

[Cites 3, Cited by 0]

Bombay High Court

Babarao S/O Pandhurangji Patil And ... vs Sau. Kalavati W/O Rambhauji And Others on 4 February, 2019

DATE OF PRONOUNCING: 04.02.2019 The petitioners (original defendants) have filed this writ petition challenging order dated 05/07/2016 passed by the Court of Joint Civil Judge, Junior Division, Nagpur (Trial Court), whereby application for amendment of plaint filed on behalf of respondent Nos.1 to 4 (original plaintiffs) has been allowed.

2. Respondent Nos.1 to 4 filed suit for declaration and permanent injunction in respect of properties against the petitioners and respondent Nos.5 and 6. The declaration sought by respondent Nos.1 to 4 was in respect of two Will Deeds and after written statement was filed on record, they sought declaration in respect of another Will. It was KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 2/21 the case of respondent Nos.1 to 4 that all the three Wills were null and void and that the petitioners, as also respondent Nos.5 and 6 were required to be restrained from dealing with the suit property since respondent Nos.1 to 4 had share in such properties.

3. The basis for the claims made in the suit filed by respondent Nos.1 to 4 was that they and the defendants had half blood relationship as their father was the same person named Pandurangji Patil, while their mothers were different wives of the said Pandurangji Patil. The suit was resisted by the petitioners and respondent Nos.5 and 6 by placing reliance on the aforesaid will deeds and claiming that respondent Nos.1 to 4 had no right in the suit property.

4. After the pleadings were complete, the evidence of the parties was recorded and at that stage, on 11/03/2016, an application was moved on behalf of respondent Nos.1 to 4 under Order VI Rule 17 of the Code of Civil Procedure (CPC) for amendment of the plaint. It was contended in the said application that respondent Nos.1 to 4 were illiterate ladies and that due to mistake of their counsel, prayer for decree of partition and claiming share was not incorporated and that the said respondents desired to have a specific prayer for decree of partition and share in the suit property to KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 3/21 be incorporated in the plaint. This was resisted by the petitioners.

5. By impugned order dated 05/07/2016, the Trial Court allowed the application filed on behalf of respondent Nos.1 to 4, holding that despite the trial having commenced, the amendment deserved to be allowed because pleadings pertaining to the proposed relief were already on record, the respondent Nos.1 to 4 had clearly stated that they did not wish to lead any further evidence and that no prejudice was likely to be caused to the petitioners upon the amendment being allowed. On this basis, the Trial Court allowed the application for amendment filed on behalf of respondent Nos.1 to 4. The said order is challenged in the present writ petition.

6. Mr. D.L.Dharmadhikari, learned counsel appearing for the petitioners, contended that the exercise of power by the Trial Court in the present case in allowing the application for amendment was on the basis of improper interpretation of Order VI Rule 17 of CPC. It was contended that the trial had not only commenced, but the recording of evidence was also complete and that at such belated stage, the amendment could not have been allowed by the Trial Court. It was submitted that respondent Nos.1 to 4 could have sought the relief of partition when KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 4/21 the suit for declaration and permanent injunction was filed and that allowing the amendment amounted to changing the nature of the suit, thereby demonstrating that the impugned order was unsustainable. It was submitted that the proviso to Order VI Rule 17 of CPC clearly operated against respondent Nos.1 to 4 and that therefore, the writ petition deserved to be allowed.

7. Per contra, Shri P. D. Randive, learned counsel appearing for respondent Nos.1 to 4, submitted that the Trial Court was justified in allowing the amendment of plaint because the said respondents had clearly stated that they did not wish to lead any further evidence in respect of the proposed prayer pertaining to partition to be added by way of amendment. It was submitted that the Trial Court was justified in allowing the amendment to avoid multiplicity of litigation and that there was no question of the relief sought by way of amendment being barred by limitation in the facts of the present case. Since respondent Nos.1 to 4 did not intend to lead any further evidence, there was no question of delay in disposal of the suit and that the petitioners had failed to show as to what prejudice they would suffer if the amendment stood allowed. As regards proviso to Order VI Rule 17 of CPC, the learned counsel contended that there was a Bombay Amendment of the year 1983 in CPC, KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 5/21 which would apply and that the amendment of Order VI Rule 17 of CPC in the year 2002 would not apply to the proceedings before the Trial Court. It was contended that the said Bombay Amendment was made under the letters patent and that such amendment would prevail over the amendment brought about in CPC in the year 2002.

8. Heard the learned counsel for the parties and perused the record. A perusal of the plaint in the present case shows that the parties are related to each other and that the whole controversy is about the properties in the hand of Pandurangji Patil, who was admittedly father of the litigating parties. Respondent Nos.1 to 4 were prompted to file the suit for declaration and permanent injunction against the petitioners and two others when the petitioners sought to dispose of the suit properties.

9. A perusal of the pleadings in the plaint, when the suit for declaration and permanent injunction was filed, shows that respondent Nos.1 to 4 (original plaintiffs) had throughout claimed that they had a share in the suit property. The relevant pleadings pertaining to their claim of share and equal right in the suit property are found in paragraphs 5, 7 and 8. The said paragraphs of the plaint read as under :-

KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 6/21 "5] That father of the plaintiff never told to the plaintiffs for any point of time that they have executed the will of their property in favour of defendant no.1 and 2. That defendant no.1 and 2 also did not disclose this fact till now to the plaintiffs the their father has executed will of their property in favour of defendant no.1 and 2. That when plaintiff realized from the reliable sources that defendant no.1 and 2 is selling said property to any third person, immediately plaintiff approached to defendants and asked for their shares. However, defendant no.1 and 2 denied that plaintiffs are having any share in the suit property. Hence immediately plaintiffs made paper publication in daily news paper Lokmat informing to the public at large that no one should make transaction with the defendants no.1 and 2 in regards suit property as plaintiffs are having undivided equal share in the suit property. That in reply to this, defendant made publication in daily news paper Lokmat on dated 5/3/2010 informing to the public that father of plaintiffs has executed a registered will in favour of defendants and hence plaintiffs are not having any interest over suit property. That looking to this public notice, plaintiffs were shocked that there father had executed a will. That KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 7/21 immediately plaintiffs achieved the copy of alleged will and shocked by seeing copy of said will that said will is nothing but the fabricated document and is bogus will and is having glaring material flaws and can not tenable in the eyes of law and apparently appears to be a bogus document which must having been prepared and fabricated by the defendant no 1 and 2 to grab the whole property and to thrown away the interest of plaintiffs from suit property.

                                   6]           ...........


                                   7]           That mere having registration of

document before the registrar do not achieved authenticity to documents. It must be reliable one. That no satisfactory reason has been given in said will to avoid the plaintiffs from getting their share. That even the father of plaintiff was not in position to go to registrar's office and to execute the will during the span of said period of the month of November, 2001 to March 2002. That late Shri Pandurangji Patil was of 80 years old and was cancer patient and pain and trouble of left hand was unbearable that they were totally in mental disturbance and was continuously in contact with the plaintiffs. Hence execution KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 8/21 of said will just one month before of death under such circumstances is highly indigestible and not reliable and do not transpire the truth however reflecting only fabrication and or falseness of said document.

8] That now the defendant no 1 an2 are trying their level best to dispose the property as soon as possible by taking the help of said alleged will. That defendant also knows that if said will comes forward then their mischief may come out. That public notice of defendant on dated 5/3/2010 in daily news paper Lokmat clearly showing their intention to alienate the suit property to defeat the rights and interest of plaintiffs from suit property. That if once the suit property disposes then it will cause grave irreparable loss to plaintiff which can not be count in terms of money. That if till the disposal of suit defendant restrains or if injunction granted in favour of plaintiff then no irreparable loss will cause to defendant and hence balance of convenience lies in favour if plaintiff. That as the will is false and fabricated document which appears prima facie from document. Hence plaintiff as being the real sister of late Pandurangji Patil, plaintiffs are having equal right, title and KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 9/21 interest over suit property and hence plaintiffs are having prima facie case. Hence it requires to restrain the defendants permanently from creating third party interest by any way over suit property. That plaintiff never relinquished there share in favour of defendants no 1 and 2 by any way at any point of time."

10. The statements made in the said paragraphs of the plaint show that respondent Nos.1 to 4 have claimed undivided equal share in the suit property as against the petitioners and other defendants. It has been specifically stated that respondent Nos.1 to 4 had approached the petitioners and other defendants asking for their share in the suit property, when it was realized that the petitioners and other defendants were seeking to dispose of the property to a third person. Thus, it becomes evident that pleadings pertaining to claim of respondent Nos.1 to 4 and their share in the suit property were specifically pleaded by them.

11. It is perhaps for this reason that in the application for amendment of plaint filed on behalf of respondent Nos.1 to 4, they sought to add only an additional prayer pertaining to decree of partition and separate possession in the suit property, without making any case for addition of any pleadings in the plaint. In fact, in the application for KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 10/21 amendment itself, it was stated on behalf of respondent Nos.1 to 4 that they had already pleaded in paragraphs 5, 7 and 8 that they had equal rights and interest in the suit property. It was explained that since respondent Nos.1 to 4 are ladies doing household work and not being literate enough to know the detailed nuances of pleadings, due to mistake of their counsel, the prayer for partition and separate possession was not made in the original plaint despite specific pleadings in paragraphs-5, 7 and 8 of the plaint.

12. Although learned counsel appearing for the parties have referred to number of judgments of the Hon'ble Supreme Court and this Court on the manner in which power is to be exercised by the Court while considering applications for amendment under Order VI Rule 17 of CPC, it would be appropriate to refer the judgment of Hon'ble Supreme Court in the case of Abdul Rehman v.

Mohd. Ruldu, (2012) 11 SCC 341. In the said judgment, it has been emphasized that the main purpose of allowing amendment is to minimise litigation and to see that such amendment is necessary for deciding the real question in controversy between the parties. The Hon'ble Supreme Court has held in the said judgment as follows :-

KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 11/21 "11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 12/21 by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others v. Gattu Mahesh and Others and Rameshkumar Agarwal v.

Rajmala Exports (P) Ltd. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment.

12. ..........

13. Next, we have to see whether the proposed amendments would alter the claim/cause of action of the plaintiffs. In view of the same, we verified the averments in the unamended plaint. As rightly pointed out by Ms Manmeet Arora, learned counsel for the appellants that the entire factual matrix for the relief sought for under the proposed amendment had already been set out in the unamended plaint. We are satisfied that the challenge to the voidness of those sale deeds was implicit in the factual matrix set out in the unamended plaint and, therefore, the relief of cancellation of sale deeds as sought by amendment does not change the nature of the suit as alleged. It is settled law that if necessary factual basis for amendment is already contained in the KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 13/21 plaint, the relief sought on the said basis would not change the nature of the suit. In view of the same, the contrary view expressed by the trial Court and High Court cannot be sustained. It is not in dispute that the relief sought by way of amendment by the appellants could also be claimed by them by way of a separate suit on the date of filing of the application. Considering the date of the sale deeds and the date on which the application was filed for amendment of the plaint, we are satisfied that the reliefs claimed are not barred in law and no prejudice should (sic would) have been caused to respondents 1-3 (Defendants 1-3 therein) if the amendments were allowed and would in fact avoid multiplicity of litigation."

13. Thus, the approach to be adopted while considering applications for amendment is to be liberal, although the power is to be exercised by the Court while considering amendment of pleadings in terms of Order VI Rule 17 of CPC.

14. While opposing the contentions raised on behalf of respondent Nos.1 to 4 and while attacking the impugned order, the learned counsel appearing for the petitioners has emphasized on two aspects, firstly, that the trial in the present case had not only KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 14/21 commenced, but even the stage of evidence was practically over when the application for amendment was filed on behalf of respondent Nos.1 to 4 and secondly, that respondent Nos.1 to 4 could have asked for the relief of partition and separate possession at the very time when the suit was filed for declaration and permanent injunction and further that the amendment application was moved only to delay the proceedings, particularly when the witnesses for respondent Nos.1 to 4 had conceded in their evidence that they had sworn their affidavit only after understanding the contents of the plaint and that they had never given written notice asking for their share in the suit property.

15. As regards the first contention pertaining to the application for amendment being moved after commencement of trial, while considering such an application, the emphasis under Order VI Rule 17 of the CPC is clearly on examining whether the amendment is necessary for the purpose of determining the real question in controversy between the parties. It is provided in Order VI Rule 17 of CPC that the Court may at any stage of the proceedings allowed the amendment of pleading. The proviso added to Order VI Rule 17 of CPC only adds a rider that after commencement of trial, no application for amendment can be allowed unless the Court comes to a conclusion that in spite of due KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 15/21 diligence, the party claiming amendment could not have raised the matter before the commencement of trial. While considering the main portion of the said provision and the proviso added thereto, the Hon'ble Supreme Court in the above quoted judgment in the case of Abdul Rehman v. Mohd. Ruldu (supra), has emphasized on the fact that the object of the said Rule is that the Courts should try merits of the case and that the main purpose of allowing the amendment is to minimise litigation between the parties.

16. The Hon'ble Supreme Court in the case of Revajeetu Builders and Developers v. Narayanaswamy and Sons and others, (2009) 10 SCC 84, after taking into consideration various judgments, has held as follows:-

"Factors to be taken into consideration while dealing with applications for amendments.

63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 16/21 (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.

64. The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."

KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 17/21 Therefore, even if trial had commenced in the present case, applying the said position of law laid down by the Hon'ble Supreme Court, it needs to be examined as to whether the amendment proposed on behalf of respondent Nos.1 to 4 was necessary for deciding the real question in controversy between the parties. A perusal of paragraphs 5, 7 and 8 of the plaint quoted above, shows that the plaint already contained specific pleadings regarding the claim of equal right and interest in the suit property raised on behalf of respondent Nos.1 to 4 and also a claim to share in the suit property. The respondents have led evidence on the basis of the said pleadings, which is already available before the Trial Court.

17. In the application for amendment moved on behalf of respondent Nos.1 to 4, it is specifically stated that pleadings in paragraphs 5, 7 and 8 of the plaint pertained to the claim of respondent Nos.1 to 4 towards equal rights, title and interest in the suit property and that the very purpose of the suit filed by the said respondents was to get equal share in the suit property. Therefore, it is clear that the said respondents did not propose to add even a single word in the body of the plaint by way of amendment. All that the said respondents have prayed for in the said application is addition of prayer for grant of decree of partition and separate KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 18/21 possession. The said respondents have also made a statement recorded by the Trial Court that they do not wish to lead any further evidence even upon the additional prayer for grant of decree of partition and separate possession being added by way of amendment. It is also stated in the application for amendment that the prayer for grant of partition and separate possession could not be stated in the plaint when the suit was filed because respondent Nos.1 to 4 are ladies doing household work and that they were not aware about the details as regards the prayers to be framed in the suit. It was indicated that respondent Nos.1 to 4 ought not to suffer due to inadvertent mistake on the part of their counsel. The facts of the present case show that the ingredients of Order VI Rule 17 of CPC stood satisfied in the present case because a proper reading of the pleadings made in the plaint would clearly show that one of the questions pertaining to the real controversy between the parties, was concerned with the claim of share of respondent Nos.1 to 4 in the suit property thereby justifying the claim for amending the plaint and adding the prayer pertaining to decree of partition and separate possession. This makes it clear that the objections sought to be raised on behalf of the petitioners on the basis of proviso to Order VI Rule 17 of CPC would not be sustainable, particularly in the light of the law laid down by the Hon'ble Supreme Court KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 19/21 suggesting liberal approach to be adopted by Courts while considering applications under Order VI Rule 17 of CPC.

18. As regards the contention raised on behalf of the petitioners that the nature of the suit would stand altered, particularly in the light of the admissions given by the witnesses for respondent Nos.1 to 4 in their evidence, a perusal of the pleadings and the evidence on record suggests that the entire emphasis of respondent Nos.1 to 4 in initiating the litigation was about claiming share in the suit property and protecting the suit property till such share was determined and given to them. Even if, witness for respondent Nos.1 to 4 conceded in cross-examination that they had not given a written notice to the petitioners and other defendants seeking a share in the suit property, they could not be barred from making such claim by way of amendment in the suit because there could be no limitation or prohibition on respondent Nos.1 to 4 to make such a claim. As regards the admission given by the witness for respondent Nos.1 to 4 that they had understood the contents of the plaint and then affirmed the same, it is found that respondent Nos.1 to 4 are ladies doing household work and they may not have been aware about the exact prayer required to be made in the suit. The contents of the plaint in paragraphs 5, 7 and 8 quoted above KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 20/21 clearly show that respondent Nos.1 to 4 had emphasized on their share in the suit property and that the said respondents would have understood the same to mean that they were claiming a share in the suit property by way of the said suit, although a specific prayer did not find place in the original plaint. In the facts and circumstances of the present case, it appears that respondent Nos.1 to 4 did make out a case for grant of amendment to add the additional prayer for partition and separate possession. Another aspect of the present case is that even if the amendment is rejected, respondent Nos.1 to 4 would still be entitled to file a separate suit for partition and separate possession. This would lead to multiplicity of litigation, which needs to be avoided, as emphasized by the Hon'ble Supreme Court in the aforesaid judgment in the case of Abdul Raheman (supra). The statement made on behalf of respondent Nos.1 to 4 before the Trial Court that they would not lead any further evidence even if the amendment regarding addition of prayer for partition and separate possession is added, makes their case further strong. On the basis of the evidence that has already come on record, the Trial Court would have to examine whether the said prayer for grant of decree of partition and separate possession could be allowed. Therefore, not only will multiplicity of litigation be avoided but the entire dispute between the parties and the real KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 ::: WP1465.17.odt 21/21 questions in controversy would be decided expeditiously in the present suit itself. Thus, it becomes clear that the Trial Court in the present case was justified in allowing the application for amendment filed on behalf of respondent Nos.1 to 4.

19. In the light of the findings that this Court has rendered above, it is not necessary to decide the question raised on behalf of respondent Nos.1 to 4 that the Bombay Amendment to Order VI Rule 17 of CPC of the year 1983 would prevail over the amendment of the said provision in the year 2002 by Act of Parliament.

20. In the light of the above, the writ petition is dismissed and the impugned order passed by the Trial Court is confirmed.

JUDGE KHUNTE ::: Uploaded on - 05/02/2019 ::: Downloaded on - 05/02/2019 23:39:26 :::

Unlock Advanced Research with PRISMAI

Bombay High Court