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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6365 OF 2015
PETITIONER : Pralhad S/o Badusingh Sable
Aged about 65 years, Occu. Agriculturist,
R/o Ramnagar field, Manora Road,
Digras, Dist. Yavatmal.
- VERSUS -
RESPONDENTS : 1] Pruthvisingh Harising Sable,
ig Aged about 36 years, Occu. Agriculturist,
2] Ganusing Badusing Sable,
Aged about 51 years, Occu. Agriculturist
3] Fattesing Pralhad Sable,
Aged about 43 years, Occu. Agriculturist,
4] Sunil Adhyansing Sable,
Aged about 33 years, Occu. Agriculturist,
5] Smt. Ramabai Badusing Sable
Aged about 87 years, Occu. Household (DEAD)
6] Harising Badusing Sable,
Aged about 63 years, Occu. Agriculturist,
7] Adhyansing Badusing Sable,
Aged about 58 years, Occu. Agriculturist
8] Ravindra Harising Sable,
Aged about 34 years, Occu. Agriculturist
9] Jamunabai Harising Sable,
Aged about 59 years, Occu. Household,
10] Mangalabai Sundarsing Padwal,
Aged about 68 years, Occu. Household,
R/o Ujwal Nagar, Tah. Manora,
Dist. Washim.
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11] Rangubai Kisan Manzrete,
Aged about 52 years, Occu. Agriculturist,
R/o Jiwali Tanda, Tah. Umarkhed,
District Yavatmal.
Respondent Nos. 1, 2, 4 & 6 to 9 are resident of
Palodi, Taq. Manora, Dist. Washim
Respondent nos.3 & 5 are resident of Ram nagar,
Digras, Tq. Digras, Dist. Yavatmal.
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Mr. A. M. Kukdey, Advocate for the petitioner.
Mr. R. M. Sharma, Advocate for the respondent no.6.
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CORAM : PRASANNA B. VARALE, J.
DATE : OCTOBER 18, 2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, the petition is heard finally at the stage of admission itself.
2] By the present petition, the petitioner challenges the order passed by the learned Civil Judge, Junior Division, Digras, dated 17.10.2015 in Regular Civil Suit No. 07/2010, thereby allowing the application submitted by the respondents seeking amendment in the written statement.
3] Few facts that would be necessary to summarize the controversy involved in the present petition, are as under :
::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:49:46 :::3 WP6365.15.odt The petitioner/plaintiff herein has instituted Regular Civil Suit No. 07/2010 against the respondents/defendants before the learned Civil Judge, Junior Division, Digras. The petitioners and the respondents are the relatives inter se. The dispute between them is in respect of an agricultural land. Respondent no.6 herein Harisingh Sable had filed his written statement on 20.04.2010, which runs in nearabout 30 pages. Apart from the counter claims, it was submitted in the written statement that respondent no.6 Harisingh Sable (Naikada) had purchased the agricultural land from his own earnings on 06.03.1997.
It was further submitted that as per the custom prevailing in Naikada Tribe, the sisters do not have any share in the property. An application under Order VI Rule 17 of the Code of Civil Procedure seeking amendment to the written statement was filed at the instance of respondent nos.1, 6 and 8 through respondent/defendant no.6 Harisingh Sable. It was submitted in the application that the respondents/defendants have already submitted their written statement, the issues are framed by the Court and the matter is pending for cross-examination of the petitioner/ plaintiff. It was further submitted in the application that the respondents/defendants belong to Scheduled Tribes, more particularly, 'Naikada' community. It was further submitted that though, a reference to this effect is already made ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:49:46 ::: 4 WP6365.15.odt in the written statement, the reference in the written statement being a brief reference, the applicants/defendants want to place an elaborate explanation on record and as such the application was filed for raising preliminary objection in elaborate submission.
4] The application was strongly opposed by the petitioner/ plaintiff. It was submitted that the petitioner/plaintiff though admitted that he and the defendants are belonging to Naikada community, the claim of the defendants that they are 'Tribes', is not admitted. It is further submitted in the reply to the application that the respondents /defendants failed to place on record any documentary material in support of their stand that they belong to Scheduled Tribes. It was submitted in the reply that the status of anyone belonging to Scheduled Tribe would be a subject matter to be decided by the competent Caste Scrutiny Committee and such status can be affirmed only after a certificate is issued by the competent Scrutiny Committee. It was also submitted in the reply that the application was filed at a belated stage i.e. after five years of filing the written statement. A strong objection was raised in respect of claiming status of 'Tribe' by respondent nos.6 and 7 by submitting that there was a contra material in respect of claim as belonging to Scheduled Tribe as in school documents belonging to ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:49:46 ::: 5 WP6365.15.odt defendant no.7 the caste is referred to as 'Ma.Banjari', whereas the relative is shown as Hindu and in respect of respondent no.6, two contrary certificates are placed on record i.e. one showing respondent no.6 belong to Banjari and his progeny belonging to 'Naikada' community. It was submitted that the defendants are not seeking the elaborate explanation, but the attempt is to change the nature of the stance and stand taken by the defendants. A pursis was filed before the trial Court, a copy of which is placed on record at Annexure-5. Perusal of said pursis show that it was signed by respondent no.8 for himself and on behalf of respondent/defendant no.1 as Power of Attorney holder. The pursis was also signed by defendant no.9. The pursis reads that the application submitted on behalf of respondent/defendant no.6 be treated as an application tendered by defendant nos.8, 1 and 9 as they not not having any objection to the application seeking amendment in the written statement and they are in agreement with the contents of the application. The trial Court, by observing that the respondents want to add preliminary objection in their written statement and want to elaborate the customs, which were prevalent in their case, allowed the application by the imopugned order.
5] Mr. Kukday, the learned counsel for the petitioner vehemently submitted that the impugned order passed by the trial ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:49:46 ::: 6 WP6365.15.odt Court is clearly unsustainable on more than one grounds. It was the submission of the learned counsel for the petitioner that the written statement was filed on 28.04.2010, whereas the application was submitted as belatedly as on 07.09.2015 i.e. after five years. He further submitted that though, it was claimed that the defendants only with a view to place on record the elaborate submissions are filing the application, the attempt is nothing but to change the nature of stance taken in the written statement. The learned counsel for the petitioner submitted that in the reply filed to the application, the plaintiff had specifically raised the ground that the defendants failed to place on record any material in support of the claim that the defendants belong to the category of Tribes and the status claimed as of 'Naikada' can be ascertained only after due scrutiny by the competent Scrutiny Committee. The learned counsel for the petitioner also submitted that the basic contention raised by the defendants in the written statement in respect of daughters having no right or share in the property, itself is denied by the plaintiff. The learned counsel also submitted that in the reply to the application itself, there was material showing altogether contrary status of respondent no.6 and the attempt is to take shelter of stand that the defendants belonging to 'Naikada' community and as such are outside the scope of provisions of Hindu Succession Act. The ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:49:46 ::: 7 WP6365.15.odt learned counsel for the petitioner then submitted that respondent no.8 Ravindra though, filed a pursis before the trial Court and submitted that the application filed by the defendant no.6 be treated as an application filed by the defendant nos.8, 1 and 9 and supported the contentions of the respondent no.6, the respondent no.8 had not placed all true facts before the trial Court, on the contrary, the respondent no.8 indulged in the act of suppressing material facts from the trial Court. The learned counsel submitted that the status of respondent no.6 of belonging to 'Naikada' Scheduled Tribe community was turned down by a reasoned order passed by the competent Scrutiny Committee, much prior to the submission of written statement and an application seeking amendment. The order of the Scrutiny Committee passed in respect of respondent no.8 Ravindra is of 17.11.1997. A copy of the said order is placed on record, which is taken on record and marked as "X" for identification. The learned counsel for the petitioner submitted that the applicant/respondent no.6 is also conveniently silent on the aspect of delay as the written statement was filed in the year 2010, whereas the application was filed in the year 2015 and absolutely no explanation is submitted in the application for the delay of five years. Thus, the learned counsel for the petitioner submitted that the trial Court, without considering all the material and objections raised by the ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:49:46 ::: 8 WP6365.15.odt petitioner in the form of their reply to the application seeking amendment, passed the impugned order. Mr. Kukde, the learned counsel placed heavy reliance on the judgment of the Hon'ble Apex Court reported in 2008 DGLS (SC) 1646 in the case of Vidyabai and others .vs. Padmalatha and another ; and the judgment of this Court reported in 2009 (5) Bom.C.R. 311 in the case of Chhabubai Haribhau Badakh .vs. S.H. Khaatod and Sons and another.
6] Per contra, Mr. Sharma, the learned counsel for the respondent no.6 vehemently submitted that no error is committed by the learned trial Court in allowing the application. The learned counsel submitted that the defendants have already took stand in the written statement of they belonging to Naikada Tribe community and in Naikada Tribe community, the sisters are having no share in the property. It was submitted that the application was only for an elaborate explanation of the stand, which was already taken. He further submitted that in view of the various judgments of this Court and the Hon'ble Apex Court, the application seeking amendment can be filed at any stage, provided the Court considers these applications on its merits and the applications filed prior to commencement of trial are liberally granted, whereas certain scrutiny is expected for the ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:49:46 ::: 9 WP6365.15.odt applications filed after commencement of the trial. It was the submission of the learned counsel for the respondent no.6 that the application was filed immediately on the next day when the trial was commenced. It was his submission that as the application was filed only with an intention to place on record an elaborate submission and the respondents/defendants were neither raising any new ground before the Court nor changing their stand reflected in the written statement, there was no reason for the respondents/defendants to submit any explanation for the delay. The learned counsel further submitted that the respondents, more particularly, respondent no.6 along with the submissions filed in this Court, has placed on record the Caste Certificate issued in favour of his father by the Executive Magistrate, Mangrulpir, dated 17.06.1981, the caste certificate issued in favour of the petitioner Pralhad Sable, dated 23.12.1992 and respondent no.3 - Fattesingh S/o Pralhad Sable, dated 20.12.1990, issued by the Executive Magistrate, Digras. Mr. Sharma, the learned counsel vehemently submitted that the trial Court is not expected to have a scrutiny of the caste status of the parties and the course open for the trial Court was to consider the application on its merits. An attempt was also made by the learned counsel to submit that the petitioner/plaintiff himself had admitted the status of the respondents ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:49:46 ::: 10 WP6365.15.odt belonging to 'Naikada' community and as such, there was no reason for the trial Court to consider this aspect of the matter. The learned counsel submitted that as the respondents approached the trial Court for placing on record the elaborate submissions, the trial Court rightly considered the object and intent of the application and allowed the same. Mr. Sharma, the learned counsel in support of his submissions placed reliance on the following reported judgments :
1] (2002) 7 Supreme Court Cases 559 Sampath Kukmar .vs. Ayyakannyu and another.
2] (2007) 6 Supreme Court Cases 167 Andhra Bank .vs. ABN Amro Bank N.V. And others.
3] 2014 (5) Mh.L.J. 849 Dinesh G. Chhabra .vs. Kishore Ghanmare 4] (2012) 2 Supreme Court Cases 300 J. Samuel and others .vs. Gattu Mahesh and others 7] The learned counsel for respondent no.6 by referring to the judgment in Dinesh G. Chhabra .vs. Koshor Ghanmare's case cited supra, submitted that the facts in the reported case and the case at hand are of similar nature namely, when the amendment was not sought for by raising new grounds, though the application was submitted at a belated stage i.e. after framing of the issues, allowing such an application was proper.
8] As the necessary facts are already referred to above in detail, it would not be necessary to refer to those facts again.
::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:49:46 :::11 WP6365.15.odt Considering the peculiar facts and the material placed on record, I find considerable merit in the submissions of the learned counsel for the petitioner. Though, at the first blush the submissions of learned counsel for the respondent no.6 looks attractive, on scrutiny and assessment of the material placed on record, I am unable to accept the submission of the learned counsel for the respondent. It was the attempt to submit before this Court that the application for amendment was nothing but an attempt to submit elaborate explanation of the stand taken in the written statement. On this backdrop, if the written statement is perused, the stand taken in the written statement, more particularly in reply to paragraph 9, reads that as per aadiwasi customs, sisters are not entitled for any share. In the written statement, which runs in 30 pages, it is nowhere submitted that the respondents were belonging to 'Naikada' Tribe category. A sweeping reference is made in paragraph 8 that respondent no.6 Harisingh Sable Naikada purchased the land from Smt.Kaushalya Yadav on 06.03.1997. The submission that the plaintiff/petitioner himself admitted the stand of the respondents also cannot be accepted on the backdrop of the reply. The petitioner /plaintiff had specifically denied the claim of the respondents that they are from Tribe community. In the reply, also the stand was taken that there is no custom prevailing in 'Naikada' community to grant share to ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:49:46 ::: 12 WP6365.15.odt the sisters in the property. The reply also refers to a contra material in respect of status of respondent nos.6 and 7. It would be very interesting to note that the respondent no. 8 herein had submitted a pursis on his behalf and on behalf of respondent nos.1 and 9 accepting the claim of respondent/defendant no.6.
9] As referred to above, the social status of respondent no.8 Ravindra, who is the son of respondent no.6, was the subject matter before the Caste Scrutiny Committee. The Scrutiny Committee in its detailed order, passed on 17.11.1997, came to the conclusion that Ravindra Sable does not belong to 'Naikada' Scheduled Tribe and accordingly, the caste certificate issued in favour of respondent no.8 Ravindra by the Executive Magistrate was cancelled. As this decision was of year 1997, it cannot be accepted that respondent no.8 Ravindra, in whose caste claim the decision was given by the competent Caste Scrutiny Committee, was not aware of the said decision till filing of the written statement by the respondent no.6 or till filing of the pursis by himself. It is also unpalatable to accept that respondent/defendant no.6, the father of respondent no.8 Ravindra, was also not aware that there was a decision of the Scrutiny Committee rejecting the caste/tribe claim of his own son. Though, there cannot be any dispute on the ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:49:46 ::: 13 WP6365.15.odt submission of the learned counsel for the respondent no.6 that it was not for the trial Court to verify the caste/tribe status of the parties and the trial Court was only to assess the merit of the application. On the backdrop of the peculiar fact on record that the parties to the proceedings, more particularly respondent/defendant no.8, is an adult member whose caste certificate was rejected by the competent Scrutiny Committee and though, this fact was well within the knowledge of respondent no.8, he supports the claim of respondent no.6 and makes a statement that the application submitted by the respondent no.6 be treated as an application by respondent nos.8, 1 & 9. It does not lie in the mouth of the party before the competent judicial forum to submit before the Court and support the stand of respondent/ defendant no.6 when the claim of social status of respondent no.8 was rejected by the competent Scrutiny Committee. It is the minimum expectation from the parties, who approach the judicial forum or even to the quasi-
judicial forum, to approach with clean hands and without suppressing any material, which is well within their knowledge. The trial Court also failed to consider that in the written statement a stand was taken that there is custom prevailing in 'Naikada' Tribe and this particular stand was denied by the petitioner/plaintiff and as such the trial Court failed to consider the aspect that the application, though ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:49:46 ::: 14 WP6365.15.odt styled as if it was an application only for elaborate explanation, there was change in the stand taken in the written statement.
10] As stated above, though Mr. Sharma, the learned counsel for respondent no.6 placed heavy reliance on the judgment of this Court in Dinesh Chhabra .vs. Kishore Ghanmare's case, as this Court is of the opinion that the attempt of the respondents/defendants was not only to submit elaborate explanation, but it was amounting to change of stand taken by them before the trial Court, the aforesaid reported judgment of this Court would not be of any help to the respondents. On the contrary, the learned counsel for the petitioner was justified in placing reliance on the judgment of this Court in Chhabubai Badakh .vs. S. H.
Khaatod's case. It would not be out of place to state that in Chhabubai's case, this Court had also an occasion to consider the judgment of the Apex Court in Andhra Bank .vs. ABN Amro Bank (supra), on which reliance was placed by the learned counsel for the respondent no.6.
11] Considering all these peculiar aspects of the matter, in my opinion, the order passed by the trial Court is unsustainable and the same needs to be quashed and set aside. In the result, the writ petition is allowed. The order passed by the learned Civil Judge, Junior Division, Digras, dated 17.10.2015 in Regular Civil Suit No. 7/2010 is ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:49:46 ::: 15 WP6365.15.odt quashed and set aside.
Needless to state that the observations made in this judgment are for deciding the controversy in this writ petition and the learned trial Court may not be influenced by these observations while deciding the suit and to decide the suit on its own merits.
ig JUDGE
Diwale
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