What is relevant for considering the application for
amendment under Order VI Rule 17 of the C.P.C. is that the amendment
proposed is necessary for deciding the real controversy involved in the
suit. The plaintiff is dominus litis and it is for him to decide as to what
relief should be claimed in the suit and who should be joined as party in
the suit. Prima facie, keeping aside the identity of the property and the
question of abatement of the suit, the apprehension of the plaintiff is that
the respondent Nos.2 and 3, who are the proposed defendants are trying
to obstruct his possession over the suit property. The controversy as to
identity of property and abatement of suit therefore, needs to be decided
in a suit which is pending. The amendment proposed, is necessary for
deciding the real controversy involved in the suit. The Trial Court could
not have rejected the application for amendment on the ground that the
plaintiff has failed to bring legal representatives of the defendant No.1
on record and that the identity of the property has not been established.
The order impugned therefore, cannot be sustained. The application
needs to be allowed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.134/2014
Kedar s/o Gangadhar Agrawal,
...V E R S U S...
1] Rambilas s/o Dinram Shiwal,
CORAM:
R.K. DESHPANDE, J.
DATE: 30 th APRIL, 2014 .
1] Rule, made returnable forthwith. Heard finally by consent
of the learned counsels appearing for the parties.
2] The challenge in this petition is to the order dated
11.12.2013 passed by the Trial Court in Special Civil Suit No.167/2009.
The Trial Court has rejected the application under Order VI Rule 17 of
the Civil Procedure Code for amendment of claim filed at Exh. 28. The
rejection of the application is on the ground that in spite of the fact that
the names of legal heirs of the defendant No.1 are brought to the notice
of the plaintiff, the plaintiff has failed to bring the names of those legal
heirs on record. It is also the finding recorded that the suit is in respect
of Survey No.10 and the amendment is in respect of the property having
Survey No.10/1A.
It has been held that there is no identity between the
suit property and the property in respect of which the plaintiff is
claiming amendment. It has been held that the amendment is not
bonafide.
3] The suit is for declaration that the plaintiff is the owner of
the suit property and is in possession of it. A decree for permanent
injunction has also been claimed, restraining the defendants their agents,
servants or relatives from disturbing the peaceful possession of the
plaintiff in the suit property. The defendant No.1 is Jasodabai w/o Late
Ratanlalji Upadhyaya, who has expired during the pendency of the suit
on 06.09.2011. The defendant No.2 claims to be a power of attorney
holder of the defendant No.1. A pursis was filed intimating the death of
defendant No.1 and giving the names of the proposed legal
representatives of the defendant No.1. According to the plaintiff, the
petitioner herein, the defendant No.2 Rambilas Dinram Shiwal, is the
only legal heir of defendant No.1 and hence no steps are taken as on this
date to bring the names of other legal heirs, as are pointed out in the
pursis filed by the defendant No.2. Shri Naik, the learned counsel
appearing for the petitionerplaintiff
submits that without prejudice to
the rights of the plaintiff such application shall be filed in the Court. It is
a fact that as on this date, there is no order passed by the Trial Court
dismissing the suit, as abated. The question as to whether the suit stands
abated or not, is to be decided by the Trial Court.
4] According to Shri Akshay Naik, the learned counsel for the
petitioner, by way of amendment two persons are sought to be added
namely (i) Mr. Ganesh s/o Vishwasrao Pawsale and (ii) Nitin s/o
Madhusudan Agrawal, as party defendant Nos.3 and 4 to the suit.
According to him such steps are required to be taken in view of the
provision of Order XXII Rule 10 of the Civil Procedure Code, as they are
purchaser of the property from the original plaintiff during the pendency
of the suit.
5] Shri Ashish Mehadia, the learned counsel appearing for the
defendants, viz: the persons who are to be added as the proposed
defendants, submitted that it is not in dispute that the purchase of
property was during the pendency of the suit. He, however, submits that
the suit property consists part of Survey No.10 and the respondent Nos.2
and 3 are the purchaser of the property i.e. field Survey No.10/1A.
He,
therefore, submits that the Trial Court was right in holding that there is
no identity of the property established. He further submits that unless
and until the abatement is set aside, the application under Order VI Rule
17 of the C.P.C. cannot be considered.
6] What is relevant for considering the application for
amendment under Order VI Rule 17 of the C.P.C. is that the amendment
proposed is necessary for deciding the real controversy involved in the
suit. The plaintiff is dominus litis and it is for him to decide as to what
relief should be claimed in the suit and who should be joined as party in
the suit. Prima facie, keeping aside the identity of the property and the
question of abatement of the suit, the apprehension of the plaintiff is that
the respondent Nos.2 and 3, who are the proposed defendants are trying
to obstruct his possession over the suit property. The controversy as to
identity of property and abatement of suit therefore, needs to be decided
in a suit which is pending. The amendment proposed, is necessary for
deciding the real controversy involved in the suit. The Trial Court could
not have rejected the application for amendment on the ground that the
plaintiff has failed to bring legal representatives of the defendant No.1
on record and that the identity of the property has not been established.
The order impugned therefore, cannot be sustained. The application
needs to be allowed.
7] In the result, the petition is allowed. The order dated
11.12.2013 passed by the Trial Court below Exh.28 in Special Civil Suit
No.167/2009, is hereby quashed and set aside. The application at Exh.
28 is allowed. The question of identity of property and that of an
abatement, are kept open to be decided by the Court. Necessary
amendment be carried out within a period of two weeks from the date of
first appearance of the parties before the Trial Court. The parties to
appear before the Trial Court on 03.05.2014. No order as to costs.
Print Page
amendment under Order VI Rule 17 of the C.P.C. is that the amendment
proposed is necessary for deciding the real controversy involved in the
suit. The plaintiff is dominus litis and it is for him to decide as to what
relief should be claimed in the suit and who should be joined as party in
the suit. Prima facie, keeping aside the identity of the property and the
question of abatement of the suit, the apprehension of the plaintiff is that
the respondent Nos.2 and 3, who are the proposed defendants are trying
to obstruct his possession over the suit property. The controversy as to
identity of property and abatement of suit therefore, needs to be decided
in a suit which is pending. The amendment proposed, is necessary for
deciding the real controversy involved in the suit. The Trial Court could
not have rejected the application for amendment on the ground that the
plaintiff has failed to bring legal representatives of the defendant No.1
on record and that the identity of the property has not been established.
The order impugned therefore, cannot be sustained. The application
needs to be allowed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.134/2014
Kedar s/o Gangadhar Agrawal,
...V E R S U S...
1] Rambilas s/o Dinram Shiwal,
CORAM:
R.K. DESHPANDE, J.
DATE: 30 th APRIL, 2014 .
1] Rule, made returnable forthwith. Heard finally by consent
of the learned counsels appearing for the parties.
2] The challenge in this petition is to the order dated
11.12.2013 passed by the Trial Court in Special Civil Suit No.167/2009.
The Trial Court has rejected the application under Order VI Rule 17 of
the Civil Procedure Code for amendment of claim filed at Exh. 28. The
rejection of the application is on the ground that in spite of the fact that
the names of legal heirs of the defendant No.1 are brought to the notice
of the plaintiff, the plaintiff has failed to bring the names of those legal
heirs on record. It is also the finding recorded that the suit is in respect
of Survey No.10 and the amendment is in respect of the property having
Survey No.10/1A.
It has been held that there is no identity between the
suit property and the property in respect of which the plaintiff is
claiming amendment. It has been held that the amendment is not
bonafide.
3] The suit is for declaration that the plaintiff is the owner of
the suit property and is in possession of it. A decree for permanent
injunction has also been claimed, restraining the defendants their agents,
servants or relatives from disturbing the peaceful possession of the
plaintiff in the suit property. The defendant No.1 is Jasodabai w/o Late
Ratanlalji Upadhyaya, who has expired during the pendency of the suit
on 06.09.2011. The defendant No.2 claims to be a power of attorney
holder of the defendant No.1. A pursis was filed intimating the death of
defendant No.1 and giving the names of the proposed legal
representatives of the defendant No.1. According to the plaintiff, the
petitioner herein, the defendant No.2 Rambilas Dinram Shiwal, is the
only legal heir of defendant No.1 and hence no steps are taken as on this
date to bring the names of other legal heirs, as are pointed out in the
pursis filed by the defendant No.2. Shri Naik, the learned counsel
appearing for the petitionerplaintiff
submits that without prejudice to
the rights of the plaintiff such application shall be filed in the Court. It is
a fact that as on this date, there is no order passed by the Trial Court
dismissing the suit, as abated. The question as to whether the suit stands
abated or not, is to be decided by the Trial Court.
4] According to Shri Akshay Naik, the learned counsel for the
petitioner, by way of amendment two persons are sought to be added
namely (i) Mr. Ganesh s/o Vishwasrao Pawsale and (ii) Nitin s/o
Madhusudan Agrawal, as party defendant Nos.3 and 4 to the suit.
According to him such steps are required to be taken in view of the
provision of Order XXII Rule 10 of the Civil Procedure Code, as they are
purchaser of the property from the original plaintiff during the pendency
of the suit.
5] Shri Ashish Mehadia, the learned counsel appearing for the
defendants, viz: the persons who are to be added as the proposed
defendants, submitted that it is not in dispute that the purchase of
property was during the pendency of the suit. He, however, submits that
the suit property consists part of Survey No.10 and the respondent Nos.2
and 3 are the purchaser of the property i.e. field Survey No.10/1A.
He,
therefore, submits that the Trial Court was right in holding that there is
no identity of the property established. He further submits that unless
and until the abatement is set aside, the application under Order VI Rule
17 of the C.P.C. cannot be considered.
6] What is relevant for considering the application for
amendment under Order VI Rule 17 of the C.P.C. is that the amendment
proposed is necessary for deciding the real controversy involved in the
suit. The plaintiff is dominus litis and it is for him to decide as to what
relief should be claimed in the suit and who should be joined as party in
the suit. Prima facie, keeping aside the identity of the property and the
question of abatement of the suit, the apprehension of the plaintiff is that
the respondent Nos.2 and 3, who are the proposed defendants are trying
to obstruct his possession over the suit property. The controversy as to
identity of property and abatement of suit therefore, needs to be decided
in a suit which is pending. The amendment proposed, is necessary for
deciding the real controversy involved in the suit. The Trial Court could
not have rejected the application for amendment on the ground that the
plaintiff has failed to bring legal representatives of the defendant No.1
on record and that the identity of the property has not been established.
The order impugned therefore, cannot be sustained. The application
needs to be allowed.
7] In the result, the petition is allowed. The order dated
11.12.2013 passed by the Trial Court below Exh.28 in Special Civil Suit
No.167/2009, is hereby quashed and set aside. The application at Exh.
28 is allowed. The question of identity of property and that of an
abatement, are kept open to be decided by the Court. Necessary
amendment be carried out within a period of two weeks from the date of
first appearance of the parties before the Trial Court. The parties to
appear before the Trial Court on 03.05.2014. No order as to costs.
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