We reiterate that all amendments
which are necessary for the purpose
of determining the real questions in
controversy between the parties
should be allowed if it does not
change the basic nature of the suit.
A change in the nature of relief
claimed shall not be considered as
a change in the nature of suit and
the power of amendment should be
exercised in the larger interests of
doing full and complete justice
between the parties." (emphasis
supplied).
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7611 OF 2012
Shakuntala w/o Balasaheb Balsaraf, Vs Ramdas s/o Laxman Balsaraf,
CORAM: S.S. SHINDE, J.
PRONOUNCED ON : 01-02-2013
2. This writ petition takes exception to the
order dated 9th August, 2012 passed below
Exhibit137
in Regular Civil Suit No. 310 of 2000
by the Civil Judge, Junior Division, Akole,
District Ahmednagar.
3. The back ground facts as disclosed in the
petition are as under::::
. The petitioners herein, are the original
plaintiffs and the respondents herein, are the
original defendants in Regular Civil Suit No. 310
of 2000. The said suit is filed for declaration
and injunction against respondent Nos. 1 to 3. In
the said suit, the petitioners herein, filed
application for amendment in the plaint, which
came to be rejected by the impugned order. Hence,
this writ petition.
4. Learned Counsel appearing for the
petitioners invited my attention to the averments
in the plaint and submitted that, the suit
property was earlier owned by one Ashok Narayan
Shete, and father of petitioner NO.1A Dhondiba
Anand Balsaraf was in possession of the suit
property under tenancy right. It is submitted
that, there was dispute in respect of the tenancy
of the suit property, later on, there was
compromise between the parties and the original
plaintiffs and respondent No. 4 purchased the suit
property from Ashok Narayan Shete. Respondent No.
1 is a nephew of petitioner No. 1 in whose name 17
Are land out of 36 Are of the suit property of the
petitioners was mutated only as a family
arrangement, however, actual possession of 17 Are
land was never given to respondent No.1.
Respondent No. 1 taking disadvantage has mutated
his name for 17 Are land from the suit property
and sold the same to respondent No. 2 by executing
the sale deed dated 2nd December, 1997. It is
further submitted that, on the strength of said
void sale deed, respondent Nos. 2 and 3 are
disturbing possession of the petitioners and
respondent NO. 4 over the suit property. Hence,
the petitioners filed suit for declaration and
injunction.
5. It is submitted that, by way of amendment
in the plaint, the petitioners want to contend
that, "the plaintiffs have filed suit against the
defendants for declaration that the sale deed
executed by defendant No.1 in favour of defendant
Nos. 2 and 3 may be declared as null and void and
possession taken by defendant Nos. 2 and 3 of 17
Are land from the western portion of the suit
property with the aid of the police should be
restored back to the petitioners." It is further
submitted that, by way of amendment, the
petitioners want to contend that, "the possession
of 17 Are land from western side of the suit
property from defendant No. 2 and 3 should be
restored back to the plaintiffs since their
possession is on the basis of void sale deed and
same is taken with the aid of the police." It is
submitted that, the said amendment was of
technical nature and cannot change the nature of
the suit. It is submitted that, if such amendment
is not allowed, the plaintiffs will have to
institute another proceedings for recovery of
possession. It is submitted that, therefore,
relief of declaration that, the sale deed executed
by defendant No.1 in favour of defendant Nos. 2
and 3 should be declared as null and void in
respect of 17 Are land from the western portion of
the suit property is main relief sought in the
suit. Therefore, by way of amendment, the
petitioners are claiming only possession of 17 Are
land from western portion of the suit property
from defendant Nos. 2 and 3 since such possession
is taken by them on the basis of void sale deed
and with the aid of police. It is submitted that,
the amendment in the plaint can be allowed even
after commencement of trial if questions in
controversy can be set at rest by allowing said
amendment. It is submitted that, to avoid
multiplicity of litigations, the application filed
by the petitioners for amendment of the plaint
ought to have been allowed by the trial Court. It
is submitted that, if the petitioners are allowed
to amend the plaint, it will not change the nature
of the suit.
Learned Counsel appearing for the
petitioners invited my attention to the reported
judgment of this Court in the case of Lalit Kabra
vs. Bombay Stock Exchange and others [2002 (Supp.
2) Bom.C.R. 808] and submitted that, this Court in
Paragraph5A
and 5B of the aforesaid judgment held
that, if the events are happened subsequent to
filing the suit by the plaintiff, the plaintiff is
entitled to amend the plaint. Leaned Counsel
pressed into service reported judgment of this
Court in the case of Krishnaji Shankar Moghe vs.
Sitaram Gangadhar Shende [2003(1) Mh.L.J. 233] and
submitted that, this Court in the facts of that
case held that, subsequent events which have
occurred after initiation of the proceedings
sought to be introduced by way of amendment to the
pleadings and if such events are in relation to
the subject matter of the dispute between the
parties and necessary to decide real controversy,
merely delay in filing the application for
amendment or because a party to the proceedings
will have to lead evidence consequent to the
amendment of the pleadings, cannot be a
justification for refusal of the application for
amendment. Therefore, learned Counsel appearing
for the petitioners relying upon the contentions
in the application for amendment, grounds taken in
the writ petition, annexures thereto and
afore mentioned judgments of this Court, would
submit that, this petition may be allowed.
6. On the other hand, learned Counsel
appearing for respondent Nos. 1 to 3 vehemently
opposed the prayer in the petition and submitted
that, the application for amendment of the plaint
is filed at belated stage when the matter is fixed
for final arguments. It is submitted that, if
such amendment is allowed, certainly proposed
amendment will change the nature of the suit
itself since the suit is not instituted for
recovery of possession. It is submitted that, the
suit filed by the plaintiffs i.e. petitioners
herein, is simplicitor suit for declaration and
perpetual injunction and therefore, by way of
proposed amendment, nature of the suit will be
changed. Learned Counsel for the respondent
Nos. 1 to 3 invited my attention to the reasons
recorded by the trial Court and submitted that,
the trial Court has given cogent reasons for
rejecting the application for amendment in the
plaint. It is submitted that, no due diligence has
been disclosed in the application for amendment of
the plaint and therefore, the trial Court has
rightly turned down the application for amendment,
therefore, this Court may not interfere in the
impugned order. Therefore, the Counsel appearing
for respondent Nos. 1 to 3 relying upon the
written statement filed before the trial Court and
the reasons recorded by the trial Court while
rejecting the application below Exhibit137
would
contend that, this petition is devoid of any
merits and same may be rejected.
7. I have given careful consideration to the
rival submissions. It appears that, the
petitioners herein filed civil suit in the year
1998. By reason of the Civil Procedure Code
(Amendment) Act, 2002 (Act 22 of 2002), the
Parliament inter alia inserted a proviso to Order
6, Rule 17 of the Code, which came into force
after aforesaid amendment.
8. Upon careful perusal of the contention of
the application for amendment, in fact, the
plaintiffs are seeking relief of restoration of
possession of 17 Are land from respondent Nos. 2
and 3. It is the case of the plaintiffs that,
initially the relief of injunction was sought,
however, respondent Nos. 2 and 3 have taken
possession of the suit land with the police aid
and therefore, it was necessary to seek amendment
to the plaint and prayer for additional relief of
restoration of possession. The main prayer that,
the sale deed executed by respondent No.1 in
favour of respondent Nos. 2 and 3, in respect of
the suit land is without having any authority to
respondent No. 1 to execute such sale deed and
therefore, said sale deed should be declared null
and void, is incorporated in main suit. In the
main suit, there are pleadings to the effect that,
the sale deed executed by respondent No.1 in
favour of respondent Nos. 2 and 3 in respect of 17
Are land should be declared null and void. By way
of amendment, the plaintiffs are only seeking
relief of restoration of possession. If such
amendment is not allowed, the plaintiffs will have
to file another suit seeking the said relief,
which would increase the multiplicity of the
litigation. By allowing such amendment, the nature
of the suit will not change. As already observed,
there is main prayer for declaration that, the
sale deed executed by respondent No.1 in favour of
respondent Nos. 2 and 3 should be declared null
and void.
9. The Supreme Court in the case of Abdul
Rehman and another vs. Mohd. Ruldu and others
reported in 2012(11) LJSFT (SC) 37 in the facts of
that case, held that, voidness of sale deeds was
implicit in the factual matrix set out in the
unamended plaint and relief of cancellation of
sale deeds as sought by amendment does not change
the nature of the suit. Paragraph Nos.10 and 15 of
the said judgment reads thus :
"10) 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
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 have been
caused to respondent Nos.13
(defendant Nos.13
therein) if the
amendments were allowed and would
in fact avoid multiplicity of
litigation.
15) We reiterate that all amendments
which are necessary for the purpose
of determining the real questions in
controversy between the parties
should be allowed if it does not
change the basic nature of the suit.
A change in the nature of relief
claimed shall not be considered as
a change in the nature of suit and
the power of amendment should be
exercised in the larger interests of
doing full and complete justice
between the parties." (emphasis
supplied).
10. In the facts of the present case,
voidness of sale deed is implicit in the pleadings
in the plaint and the plaintiffs have sought
relief of restoration of possession of the suit
land since according to them, possession of suit
land is taken by defendant Nos. 2 and 3 with the
police aid during the pendency of the suit.
11. Upon careful perusal of the impugned
judgment and order, it appears that, the trial
Court has only referred order below Exhibit5
passed by the Civil Court on 20th March, 1999.
However, the trial Court has not taken into
consideration the order passed by the trial Court
below Exhibit44
in Regular Civil Suit No. 310 of
2000. The said application was filed on behalf of
defendant No.2 for temporary injunction, however,
same came to be rejected by the order dated 16th
February, 2005. There are certain observations by
the trial Court in paragraph6
of the said order
that, the order by the Tahsildar holding
possession of 17 Are portion of the defendants, is
subsequently cancelled by the decision of the Sub
Divisional Officer.
12. Therefore, taking overall view of the
matter, in my opinion, the application for
amendment below Exhibit137
should have been
allowed by the trial Court to avoid multiplicity
of the litigation and to set at rest the questions
in controversy involved in the suit. It is true
that, there is a belated attempt by the plaintiffs
to bring such amendment, however, the defendants
can be compensated by awarding the costs.
Accordingly, in the aforesaid back ground, the
following order is passed.
: ORDER :
(1) The writ petition is allowed in terms of
prayer clause (B);
(2) The petitioners i.e. original plaintiffs
should be allowed to amend the plaint as per
amendment application at Exhibit137.
However,
the plaintiffs are directed to deposit Rs.6000/(
Rs. Six thousand only) towards costs in the trial
Court, within two weeks from today. Upon such
deposit of costs amount, defendant Nos. 1 to 3
will be entitled to withdraw the same in
proportionate, unconditionally.
(3) The deposit of costs amount of Rs.6000/by
the plaintiffs is a precondition
for allowing
the amendment, to be carried out in the plaint.
After depositing the costs amount, the plaintiffs
shall carry out amendment immediately within one
week. The respondents will have liberty to file
additional written statement, if any, to the
amended portion in the plaint within one week from
actual amendment in the plaint. The whole
exercise should be done by the parties within five
weeks from today.
(4) Since the suit is pending from 1998, the
trial Court after allowing the amendment to the
plaint and written statement, if any, by the
respondents to the amended plaint, shall proceed
to hear and decide the suit, as expeditiously as
possible, however, within three months from today.
(5) Rule is made absolute on above terms.
S.S. SHINDE, J.]
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