When court should allow amendment of plaint in partition suit?

 It is apparent that if the suit continues in the form in which it
stands today before the trial Court, the same is most likely to result in
the rejection of the suit only on the ground of non-inclusion of all the

properties. Keeping this aspect in view, notwithstanding that the
proviso to Order VI Rule 17 of the CPC imposes certain restrictions, this

case has to be looked at differently.

 It is, therefore, to be considered as to whether the suit of the
petitioner should be permitted to proceed under such legal defects or
whether the said defects could be done away with before it is too late.
As has been held by the Apex Court in the above referred judgments,
appropriate costs could be imposed on the petitioner, to be awarded to
the respondent so as to reduce the rigors of litigation and the hardships
that are caused to the respondent.

In the light of the same, I find that the ends of justice would be
met by permitting the petitioner to amend the plaint so as to include all
the properties which have been left out and which are situated in UttarPradesh. The second respondent is at liberty to file an Additional
Written Statement, if felt necessary.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7029 OF 2015
RAJBAHADDUR JIYARAM YADAV
VERSUS
PRAKASH @ PAPPU JIYARAM YADAV AND OTHERS

CORAM : RAVINDRA V. GHUGE, J.
Dated: July 29, 2015
Citation; 2016(1) ALLMR 550,2016(2)MHLJ639

1. The petitioner is aggrieved by the order dated 5.5.2015,
delivered by the trial Court, below Exhibit 89 in Special Civil Suit No.24
of 2011, which has resulted in the rejection of an application seeking
amendment to the plaint under Order VI Rule 17 of the Code of Civil
Procedure (“CPC”).
2. The petitioner contends that Special Civil Suit No.24 of 2011 has
been filed for seeking declaration, partition, separate possession and
perpetual injunction. Respondent Nos.1 and 2 are the original
defendants, who are real brothers of the petitioner / plaintiff.
Respondent Nos.3 and 4 are the real sisters of the petitioner.
3. The father of the petitioner, who originally hails from Jaunpur, in
Uttar Pradesh has migrated to Shrirampur in 1972, where he has started
his business.

4. In the suit preferred by the petitioner, defendant Nos.3 and 6
have not caused an appearance despite service and hence the suit has
proceeded ex parte against these two defendants by order dated
11.10.2011. Defendant No.1 did not prefer filing a Written Statement
and hence the matter has proceeded without his Written Statement by
order dated 8.11.2011. Shri Karpe, therefore, submits that defendant
No.2 / respondent No.2 herein, is the contesting defendant.
5. It is undisputed that the petitioner has preferred application
Exhibit 89 before the trial Court on 27.4.2015. The matter was in the
midst of final arguments before the trial Court. The petitioner has
indicated through the application such immovable properties which are
situated at Jaunpur and which have been inadvertently left out from
the suit. It was, therefore, prayed before the trial Court that the suit
would suffer an irreparable damage for not including these properties,
especially when the suit has been filed for partition and separate
possession. It was, therefore, submitted that the amendment be
permitted.
6. The petitioner assails the impugned order on the ground that the
trial Court should have allowed the application keeping in view that the
suit would virtually stand rejected if all the properties are not included.
Shri Karpe, therefore, submits that notwithstanding the stage in the

matter, it would not have been too late to permit the plaintiff to
include the properties so as to enable the trial Court to decide the suit
in accordance with law. He submits that the rejection of Exhibit 89 has
virtually rendered the plaintiff remediless.
7. Shri Badakh, learned Advocate appearing on behalf of the second
respondent / original defendant No.2 has vehemently opposed this
petition He submits that this petition cannot be entertained unless the
petitioner establishes perversity in the findings of the trial Court.
8. He has pointed out material aspects from the case, which are as
follows:-
(a) The suit preferred by the petitioner is based on the
contention that ancestral properties are involved.
(b) Defendant No.2 filed his written statement on 11.10.2011,
clearly making out a case of non-inclusion of certain properties.
(c) Certain documents were also placed on record and the
petitioner was made aware of these objections through the
written statement and the documents.
(d) Issues had been cast long ago, whereby the petitioner got
a clear idea that he has failed to include all the properties in the
suit.
(e) The petitioner was confronted on non-inclusion of

properties in his cross-examination.
(f) After the final arguments had commenced, by way of an
after thought, the petitioner has moved Exhibit 89 in order to
rescue his suit from being dismissed, apparently, on account of
non-inclusion of all the properties.
(g) In response to application Exhibit 89, respondent No.2, has
filed his detailed Say, dated 13.4.2015, highlighting the above
factors and also indicating to the trial Court that some properties
are self acquired properties of the second defendant.
(h) The petition is devoid of merits and should be dismissed.
9. Shri Badakh has relied upon two judgments, delivered by this
Court in the matter of Dnyandeo Ramlal Patil Vs. Sanjeev Bhavlal Patil
[2014 (6) Mh. L.J. 400] and Girish Bapusaheb Bhor Vs. Ambadas
Chandrabhan Perne [2015 (1) Mh.L.J. 916].
10. I have considered the submissions of the learned Advocates, who
have taken me through the petition paper book.
11. It is not in dispute that a suit for partition and separate
possession, with regard to ancestral property involves all such blood
relations, who could have a legal share in the property. It is also not in
dispute that such a suit could be dismissed on account of non-inclusion
of all the properties since the suit cannot be entertained for partial

partition. Issue as to whether some of the properties included in the
suit are self acquired properties of any of the defendants or plaintiffs
can be gone into by the trial Court.
12. I do find from this case that the petitioner was made aware of
the non-inclusion of the properties through the Written Statement,
where the objection has already been taken that the suit suffers from
non-inclusion of all properties. This issue was made prominently known
to the petitioner during his cross-examination. This has been admitted
by the petitioner. Yet, an application for amendment was not filed
with the promptitude that is normally expected from a diligent litigant.
13. The explanation offered by Shri Karpe is that these properties are
situated in Uttar Pradesh. The petitioner was about two years' old when
he came to Shrirampur owing to the migration of his father. Since then
he has been staying in Maharashtra and he took time to collect the
details of the ancestral properties situated in Jaunpur (U.P.). He
further submits that he could not have filed an application for
amendment on the basis of hear say information or inaccurate
information. It is for these reasons that some time was consumed.
14. It is apparent that if the suit continues in the form in which it
stands today before the trial Court, the same is most likely to result in
the rejection of the suit only on the ground of non-inclusion of all the

properties. Keeping this aspect in view, notwithstanding that the
proviso to Order VI Rule 17 of the CPC imposes certain restrictions, this
case has to be looked at differently.
15. I have extensively considered the law on amendment in the
judgment dated 25.11.2014, Sanjay Suganchand Kasliwal Vs.Jugalkishor
 Chaganlal Tapadia [ 2015 (3) Mh.L.J. 121 ] , as follows:-
“33. In the 2010 Apex Court Judgment in case of Hindustan
Construction Company (supra), paragraph Nos. 16 to 21 are of
assistance and as such, I find it necessary to reproduce the said
paragraphs herein below:-
“16. Pleadings and particulars are required to enable the
court to decide true rights of the parties in trial.
Amendment in the pleadings is a matter of procedure.
Grant or refusal thereof is in the discretion of the court.
But like any other discretion, such discretion has to be
exercised consistent with settled legal principles. In
Ganesh Trading Co. v. Moji Ram, this Court stated : (SCC
p.93, para 2)
"2. Procedural law is intended to facilitate and not
to obstruct the course of substantive justice.
Provisions relating to pleading in civil cases are
meant to give to each side intimation of the case of
the other so that it may be met, to enable Courts
to determine what is really at issue between
parties, and to prevent deviations from the course

which litigation on particular causes of action must
take."
17. Insofar as Code of Civil Procedure, 1908 (for short
`CPC') is concerned, Order VI Rule 17 provides for
amendment of pleadings. It says that 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.
18. The matters relating to amendment of pleadings
have come up for consideration before courts from time
to time. As far back as in 1884 in Clarapede & Company v.
Commercial Union Association11 - an appeal that came up
before Court of Appeal, Brett M.R. stated :
".....The rule of conduct of the court in such a case
is that, however negligent or careless may have
been the first omission, and, however late the
proposed amendment, the amendment should be
allowed if it can be made without injustice to the
other side. There is no injustice if the other side
can be compensated by costs; but, if the
amendment will put them into such a position that
they must be injured, it ought not to be made....."
19. In Charan Das and Others v. Amir Khan and Others,

Privy Council exposited the legal position that 11 Vol XXXII
The Weekly Reporter 262 12 (1920) LR 47 IA 255 1 although
power of a Court to amend the plaint in a suit should not
as a rule be exercised where the effect is to take away
from the defendant a legal right which has accrued to him
by lapse of time, yet there are cases in which that
consideration is outweighed by the special circumstances
of the case.
20. A four-Judge Bench of this Court in L.J. Leach and
Company Ltd., v. Jardine Skinner and Co. while dealing
with the prayer for amendment of the plaint made before
this Court whereby plaintiff sought to raise, in the
alternative, a claim for damages for breach of contract
for non-delivery of the goods relied upon the decision of
Privy Council in Charan Das & Others 12; granted leave at
that stage and held :
"16. It is no doubt true that courts would, as a rule,
decline to allow amendments, if a fresh suit on the
amended claim would be barred by limitation on
the date of the application. But that is a factor to
be taken into account in exercise of the discretion
as to whether amendment should be ordered, and
does not affect the power of the court to order it,
if that is required in the interests of justice."
“36. The Apex Court in Rajeshkumar Aggrawal case (supra) has
observed in paragraph Nos. 18 and 19 as follows:-
“17. In our view, since the cause of action arose

during the pendency of the suit, proposed
amendment ought to have been granted because
the basic structure of the suit has not changed and
that there was merely change in the nature of
relief claimed. We fail to understand if it is
permissible for the appellants to file an
independent suit, why the same relief which could
be prayed for in t he new suit cannot be permitted
to be incorporated in the pending suit.
18. As discussed above, the real controversy test
is the basic or cardinal test and it is the primary
duty of the court to decide whether such an
amendment is necessary to decide the real dispute
between the parties. If it is, the amendment will
be allowed; if it is not, the amendment will be
refused. On the contrary, the learned judges of the
High Court without deciding whether such an
amendment is necessary have expressed certain
opinions and entered into a discussion on merits of
the amendment. In cases like this, the court should
also take notice of subsequent events in order to
shorten the litigation, to preserve and safeguard
the rights f both parties and to sub serve the ends
of justice. It is settled by a catena of decisions of
this Court that the rule of amendment is
essentially a rule of justice, equity and good
conscience and the power of amendment should be
exercised in the larger interest of doing full and
complete justice to the parties before the court.”
“49. In Revajeetu Builders & Developers' case (supra), the Apex

Court, while dealing with the case of amendment has considered
the law almost from 1884 onwards. Paragraph Nos. 27 to 47 read
as under:-
“33. The general principle is that courts at any stage of
the proceedings may allow either party to alter or amend
the pleadings in such manner and on such terms as may be
just and all those amendments must be allowed which are
imperative for determining the real question in
controversy between the parties. The basic principles of
grant or refusal of amendment articulated almost 125
years ago are still considered to be correct statement of
law and our courts have been following the basic
principles laid down in those cases.
34. In the leading English case of Cropper v. Smith6,
the object underlying amendment of pleadings has been
laid down by Browen, L.J. in the following words:
"It is a well established principle that the object of
the courts is to decide the rights of the parties and
not punish them for mistakes they make in the
conduct in their cases by deciding otherwise than in
accordance with their rights ... I know of no kind of
error or mistake which, if not fraudulent or
intended to overreach, the court ought not to
correct if it can be done without injustice to the
other party. Courts do not exist for the sake of
discipline but for the sake of deciding matters in
controversy, and I do not regard such amendment as
a matter of favour or grace ... it seems to me that
as soon as it appears that the way in which a party
has framed his case will not lead to a decision of

the real matter in controversy, it is as much a
matter of right on his part to have it corrected if it
can be done without injustice, as anything else in
the case is a matter of right."
35. In Tildersley v. Harper7 which was decided by the
English Court even earlier than the Cropper's case (supra),
in an action against a lessee for setting aside a lease, in
the statement of claim it was alleged that the power of
attorney of donee had received specified sum as a bribe.
In the statement of defence, each circumstance was
denied but there was no general denial of a bribe having
been 6 (1884) 29 Ch D 700 7 (1878) 10 Ch. D 393 given. A
prayer for amendment of the defence statement was
refused.
36. The Court of Appeal held that the amendment
ought to have been allowed. Bramwell, L.J. made the
following pertinent observations:
"I have had much to do in Chambers with
applications for leave to amend, and I may perhaps
be allowed to say that this humble branch of
learning is very familiar to me. My practice has
always been to give leave to amend unless I have
been satisfied that the party applying was acting
mala fide, or that, by his blunder he had done some
injury to his opponent which could not be
compensated for by costs or otherwise." (Emphasis
added)

38. The rule, however, is not a universal one and under
certain circumstances, such an amendment may be
allowed by the court notwithstanding the law of
limitation. The fact that the claim is barred by law of
limitation is but one of 8 (1880) 19 QBD 394: 56 LJ QB 621
the factors to be taken into account by the court in
exercising the discretion as to whether the amendment
should be allowed or refused, but it does not affect the
power of the court if the amendment is required in the
interests of justice.
42. In a concurring judgment ((1909) 33 Bom 644),
Beaman, J. observed:
"The practice is to allow all amendments,
whether introducing fresh claims or not, so long as
they do not put the other party at a disadvantage
for which he cannot be compensated by costs."
His Lordship proceeded to state:
"In my opinion two simple tests, and two
only, need to be applied, in order to ascertain
whether a given case is within the principle. First,
could the party asking to amend obtain the same
quantity of relief without the amendment? If not,
then it follows necessarily that the proposed
amendment places the other party at a
disadvantage, it allows his opponent to obtain more
from him than he would have been able to obtain
but for the amendment. Second, in those
circumstances, can the party thus placed at a

disadvantage be compensated for it by costs? If not,
then the amendment ought not, unless the case is so
peculiar as to be taken out of the scope of the rule,
to be allowed."
16. It is, therefore, to be considered as to whether the suit of the
petitioner should be permitted to proceed under such legal defects or
whether the said defects could be done away with before it is too late.
As has been held by the Apex Court in the above referred judgments,
appropriate costs could be imposed on the petitioner, to be awarded to
the respondent so as to reduce the rigors of litigation and the hardships
that are caused to the respondent.
17. Shri Badakh has placed reliance on the Dnyandeo's judgment
(supra). In the said matter, the issue was with regard to a property,
which was in the possession of the defendants and the petitioner could
have amended his plaint only after gathering the knowledge which was
acquired from the 7/12 extracts and subsequent events. However, this
Court had noticed that the petitioner had a remedy available and could
resort to the said remedy despite the rejection of his application for
amendment. This Court, therefore, has observed in paragraph No.25 as
under:-
“25. In the light of the above, no doubt, the petitioner, by the
rejection of his application for amendment, will have to take
recourse to law and avail of such a remedy as may be available

to him in law. There is a possibility that he would have to
initiate a suit for redressal of his grievance. However, the ratio
laid down by this Court in the cases of Dela and Shakuntala
(supra) is based on altogether different set of facts. In the
instant case, laxity, negligence and lack of due diligence on the
part of the petitioner have, therefore, led to the passing of the
impugned order, which I do not find to be perverse and
unsustainable in law.”
18. Shri Badakh has further relied upon the judgment of this Court in
the case of Girish (supra). This Court had considered the aspect that
the proposed amendment was in the nature of setting forth
argumentative issues. The prayers in tune with the same were already
available as they were set out by the petitioner in its written
statement. In that backdrop, this Court came to a conclusion that since
the prayers are available, the amendment may not be strictly required.
The observations of this Court are found in paragraph No.28, which
reads as under:-
“28. In the light of the above, I find that this petition is devoid
of merit. However, in the light of the prayers in paragraph 6-B
of the written statement, an amendment may not be strictly
required. As such, while disposing of this petition without
causing interference in the impugned order, ends of justice
could be met by observing that prayer clause 6-B can be pressed
into service in so far as the reliefs that the petitioner is seeking
from the Court.”

19. In the light of the same, I find that the ends of justice would be
met by permitting the petitioner to amend the plaint so as to include all
the properties which have been left out and which are situated in Uttar
Pradesh. The second respondent is at liberty to file an Additional
Written Statement, if felt necessary. Pursuant to the amendment, the
trial Court would deal with the suit in accordance with law, since fresh
notices will have to be issued to the defendants after the properties are
included in the suit.
20. As such, this Writ Petition is partly allowed. The impugned order
dated 5.5.2015 is quashed and set aside. Application Exhibit 89 stands
allowed by imposing cost of Rs.25,000/- (Rs. Twenty Five Thousand
only/-) on the petitioner which shall be deposited before the trial Court
within a period of four weeks from today. Since respondent No.2
herein has caused an appearance and contested the petition and since
the suit has proceeded ex parte against defendants 1 and 3 to 6, the
costs will be withdrawn by the second defendant alone, who has
contested the suit as well as this petition.
21. Needless to state, the trial Court will have to issue fresh notices
after the amendment is carried out and which shall be carried out
within a period of four weeks from today. Respondent No.2 as well as
the other defendants would be at liberty to participate in the
proceedings if they so desire and so also liberty to the second

respondent to file an Additional Written Statement.
 ( RAVINDRA V. GHUGE, J. )

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