Bombay High Court
Ramkrishna Govind Rane vs Shivajirao Jagannath Bhosale Since ... on 1 April, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:15585
3-WP10675-2023.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10675 OF 2023
Ramkrishna Govind Rane ...Petitioner
Versus
Shivajirao Jagannath Bhosale (since
deceased) through LRs.
1A. Kamal Shivajirao Bhosale
SANTOSH 1B. Sunil Shivajirao Bhosale
SUBHASH
KULKARNI 1C. Anil Shivajirao Bhosale
Digitally signed by
SANTOSH SUBHASH
KULKARNI
1D. Nitin Shivajirao Bhosale
Date: 2025.04.04
14:51:59 +0530 1E. Yogita Satyajeet Patil ...Respondents
Mr. Abhay Anil Anturkar, a/w Tanaji Mahatugade and
Harshvardhan Suryawanshi, for the Petitioner.
Mr. Dilip Bodake, for the Respondents.
CORAM: N. J. JAMADAR, J.
DATED: 1st APRIL, 2025
ORAL JUDGMENT:-
1. Rule. Rule made returnable forthwith and, with the consent of the learned Counsel for the parties, heard finally.
2. The challenge in this petition is to an order dated 7 th August, 2023 passed by the learned Civil Judge, Pune, whereby an application (Exhibit-314) preferred by the plaintiff for amendment in the plaint in Special Civil Suit No.1896 of 2017 came to be rejected.
3. The background facts leading to this petition can be summarised as under:
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3-WP10675-2023.DOC 3.1 Late Shalini Rane, the wife of the petitioner, had instituted a suit for specific performance of the contract to sale the suit property contained in the agreement dated 23 rd February, 1983. In the said suit, it was the assertion of the late plaintiff that the then defendant No.1 (hereinafter referred to as deceased defendant) had agreed to sell the suit property for a consideration of Rs.3,20,000/- and towards part consideration, a sum of Rs.2,00,000/- was paid to the deceased defendant by a cheque drawn on Rupee Co-
operative Bank, Shivaji Nagar, Pune. The deceased defendant was to obtain the permission of the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976, and, thereafter, execute the sale deed.
3.2 Late plaintiff had further asserted that the deceased defendant had agreed to execute the sale deed in favour of the plaintiff or in the name of the plaintiff and defendant No.2, her husband. Though defendant No.2 was shown as the prospective purchaser, consideration had been paid by the plaintiff only and the balance consideration was also to be paid by the plaintiff alone. Therefore, defendant No.2 was impleaded as a formal party defendant to the suit. 2/12 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:44:15 :::
3-WP10675-2023.DOC 3.3 During the pendency of the suit, defendant No.2 - the petitioner herein, filed an application to transpose him as plaintiff. By an order dated 3 rd September, 1997, the petitioner came to be transposed as plaintiff No.2. 3.4 It seems that there was some sort of composition between the late plaintiff and the deceased defendant. An application for withdrawal of the suit was filed by the late plaintiff. The petitioner opposed the said application. By an order dated 9th July, 2002, the said application for withdrawal of the suit came to be rejected.
3.5 Shalini Rane passed away on 18th February, 2014. The petitioner came to be impleaded as plaintiff No.1A in the capacity of the legal representative of late plaintiff, alongwith plaintiff No.1B, who is the son of plaintiff No.2 and late plaintiff No.1. Trial commenced. The parties led evidence. 3.6 At the stage of the final arguments, the plaintiffs filed an application seeking amendment in the plaint so as to delete paragraph 21, and the following averment in paragraph 4 of the plaint, "though the plaintiff is only to pay the consideration of the said plot to the defendant No.1". 3.7 The application was resisted by the defendants. 3/12 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:44:15 :::
3-WP10675-2023.DOC 3.8 By the impugned order, the learned Civil Judge was persuaded to reject the application primarily on the ground that, by the proposed amendment, the plaintiffs intended to withdraw the admission which created a vested right in the defendants. Consequently, the proposed amendment was prejudicial to the defendants.
4. I have heard Mr. Anturkar, the learned Counsel for the petitioner, and Mr. Bodake, the learned Counsel for the respondents.
5. The learned Counsel for the petitioner submitted that though the application was preferred at the stage of final argument of the suit, yet, the facts of the case would indicate that no real prejudice was likely to be caused to the defendants by permitting the plaintiffs to amend the plaint. The learned Counsel for the petitioner took the Court through the written statement filed by the deceased defendant, especially the contentions in paragraphs 8 and 10 of the written statement, the tenor of which was that the real transaction was between the deceased defendant and plaintiff No.2.
6. The learned Counsel further submitted that in view of the subsequent developments and the demise of late plaintiff 4/12 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:44:15 ::: 3-WP10675-2023.DOC No.1, the averments in paragraph 21 of the plaint wherein the late plaintiff had made an endeavour to demonstrate that the name of plaintiff No.2 was nominally included in the agreement for sale and no consideration was parted with by plaintiff No.2, are required to be deleted. It was submitted that in order to determine the real question in controversy between the parties, the proposed amendment is necessary. A strong reliance was placed on the judgment of the Supreme Court in the case of Rajesh Kumar Aggarwal and others vs. K. K. Modi and others1
7. Mr. Bodake, the learned Counsel for the respondents - defendants, strongly opposed the prayer for amendment. It was submitted that the proposed amendment will cause grave prejudice to the defendants. Plaintiff No.2 did not seek the amendment in the plaint immediately after his transposition as the plaintiff. The proposed amendment will completely alter the nature and character of the suit. In fact, according to Mr. Bodake, entire trial would be reopened as the plaintiffs would be required to establish that the consideration was not parted with by the late plaintiff. Therefore, the learned Civil Judge was justified in rejecting 1 (2006) 4 Supreme Court Cases 385.
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3-WP10675-2023.DOC the application for amendment at such a belated stage, urged Mr. Bodake.
8. Mr. Anturkar, the learned Counsel for the petitioner, on instructions, made a statement that the plaintiffs would not lead further evidence in the event the amendment is allowed. The proposed amendment was necessitated on account of the incongruity in the late plaintiff's initial case and the subsequent developments.
9. I have given anxious consideration to the rival submissions. First and foremost, it is necessary to note that the suit came to be instituted in the year 1996. Consequently, the amendment introduced by inserting the proviso to Rule 17 Order VI, by the CPC Amendment Act, 2000, is not attracted to the case at hand. Thus, the application for amendment was required to be appreciated on the well recognized principles which govern an application for amendment in the pleadings.
10. Two overarching principles generally govern an application for amendment in the pleadings. One, whether the amendment is necessary for determining the real question in controversy between the parties. All amendments which are necessary to determine the real question in 6/12 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:44:15 ::: 3-WP10675-2023.DOC controversy between the parties, are required to be allowed. Two, whether the proposed amendment has the potentiality to cause irretrievable prejudice to the opponent. Few other factors like, whether the proposed amendment completely alters the nature and character of the suit or the relief sought to be claimed, by way of amendment, is barred by law of limitation, or otherwise the proposed amendment takes away a right vested in the opponent, are also required to be kept in view.
11. In the facts of the case at hand, from the tenor of the plaint, it becomes evident that the late plaintiff had asserted that the deceased defendant had agreed to sell the suit property to the late plaintiff and her husband, the then defendant No.2, albeit with a rider that the consideration was paid by late plaintiff alone and the then defendant No.2 had not contributed thereto and the balance consideration was also to be paid by the late plaintiff.
12. It is the response of the deceased defendant to the aforesaid case of the late plaintiff, that assumes material significance. In the written statement, in paragraph 8, the then defendant No.1 had categorically contended that the then defendant No.2 was required to be transposed as the 7/12 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:44:15 ::: 3-WP10675-2023.DOC plaintiff. In paragraph 10 of the written statement, it was specifically denied that late plaintiff had paid Rs.2,00,000/- to the deceased defendant towards the consideration. On the contrary, it was contended, the real transaction was between the deceased defendant and the petitioner - then defendant No.2. It was the defendant No.2, who had paid the said sum of Rs.2,00,000/- by way of an advance and made the deceased defendant to execute the agreement for sale.
13. The substance of the defence of the deceased defendant was that defendant No.2, being an Advocate, represented the deceased defendant in legal matters, the professional bond grew strong; the defendant No.2 had advanced money to the deceased defendant and to cover the said amount of loan of Rs.2,00,000/-, the defendant No.2 had made the deceased defendant to execute an agreement for sale, and as the deceased defendant reposed trust and confidence in defendant No.2, the agreement for sale was executed. And there was no transaction between the deceased defendant and late plaintiff, as alleged, nor the consideration was paid by late plaintiff.
14. In the backdrop of the aforesaid nature of the defence of the deceased defendant, I find substance in the submission 8/12 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:44:15 ::: 3-WP10675-2023.DOC on behalf of the petitioner that the proposed amendment is necessary for the determination of real question in controversy and is also not likely to cause any prejudice to the deceased defendant.
15. The learned Civil Judge was of the view that the proposed amendment takes away an admission. I am afraid, the said assessment of the learned Civil Judge is correct. The claim of late plaintiff was controverted by the deceased defendant. It was the specific contention of the deceased defendant that late plaintiff had not paid the sum of Rs.2,00,000/- to the deceased defendant towards the part consideration for the contract for sale, as alleged, and the said amount paid to the deceased defendant, represented an advance given by the then defendant No.2 to the deceased defendant.
16. The Court is also required to take conscious cognizance of the subsequent developments in the nature of an abortive attempt of withdrawal of the suit by late plaintiff and the subsequent impleadment of plaintiff No.2 also as a legal representative of late plaintiff. It is true that, upon being impleaded as a legal representative of the late plaintiff, the plaintiff No.2 was, in law, entitled to take the stand which is 9/12 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:44:15 ::: 3-WP10675-2023.DOC appropriate to his character as the legal representative of plaintiff No.1. However, the Court cannot lose sight of the fact that plaintiff No.2 got himself transposed in his own right. Therefore, the limitations which generally apply to a legal representative, who is impleaded in the place of a deceased party, do not preclude the plaintiff No.2 from taking a stand which is at variance with that of the late plaintiff. Consequently, it cannot be said that plaintiff No.2 is bound by the admissions of late plaintiff. Moreover, in view of the stand of the deceased defendant in the written statement, it is debatable whether the said averments in the plaint can be construed as an admission.
17. Even otherwise it is trite law that admissions are not conclusive and can be explained and even inconsistent pleas can be taken in the pleadings. (Usha Balasaheb Swami vs. Kiran Appaso Swami (AIR 2007 Supreme Court 1663).
18. In the peculiar facts of the case at hand, in order to determine the real question in controversy between the parties which according to the deceased defendant is, in fact, between the deceased defendant and plaintiff No.2 only, the proposed amendment appears essential for a just decision of 10/12 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:44:15 ::: 3-WP10675-2023.DOC the case. No prejudice is likely to be caused to the defendants by the proposed amendment.
19. On the aspect of delay and protraction of trial, the statement made on behalf of the petitioner that the plaintiffs will not lead any further evidence can be accepted as a statement made to the Court. Additionally, the plaintiffs can be saddled with costs. Resultantly, the petition deserves to be allowed.
20. Hence, the following order:
:ORDER:
(i) The petition stands allowed. (ii) The impugned order stands quashed and set aside. (iii) The application for amendment in the plaint (Exhibit-
314) stands allowed subject to payment of costs of Rs.10,000/- by the plaintiff to the defendants within a period of two weeks from the date of uploading of this order.
(iv) Necessary amendment in the plaint be carried out within a period two weeks of the payment of the costs and amended copy of the plaint be served on the defendants.
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3-WP10675-2023.DOC
(v) The defendants are at liberty to file an additional written statement, within a period of 30 days of the service of the amended copy of the plaint.
(vi) The statement made on behalf of the plaintiffs that the plaintiffs will not lead further evidence, post amendment, is accepted as a statement made to the Court.
(vii) The defendants are, however, at liberty to lead further evidence, if they chose to.
Rule made absolute in the aforesaid terms.
[N. J. JAMADAR, J.] 12/12 ::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 04:44:15 :::