Sou. Shakuntala J. Gujar vs Shri Dilip R. Pawar & Anr.
2001 Latest Caselaw 107 Bom

JUDGMENT

A. M. Khanwilkar, J.

1. This writ petition takes exception to the order passed by the Civil Judge, S. D., Alibag dated 15.10.1993 below Exh. 33 in Special Civil Suit No. 98 of 1990.

2. By application below Exh. 33 the Petitioner herein prayed that the Petitioner be permitted to carry out the proposed amendment to the plaint as set out in the application. The Petitioner, besides the relief claimed in the plaint for partition, now sought further relief that the Will executed by the deceased is void and Illegal. The Court below, by the impugned order, rejected the application preferred by the Petitioner and refused to permit amendment as sought mainly on the ground that permitting the petitioner to carry out the amendment would amount to allowing him to introduce new cause of action and further that the claim set up by way of proposed amendment is barred by time. It is this decision which has been taken exception to in the present writ petition.

3. After having considered the relevant pleadings and the reasoning recorded by the Court below 1 find no reason to take a different view that the proposed amendment was time barred, inasmuch as. the factum of existence of the Will executed by the deceased was known to the Petitioner much prior April, 1990; and in that context the Petitioner had made an application to the Mamlatdar on 19.4.1990. Besides the said application the Petitioner also made an application to the Tahasildar on 21.4.1990, where he clearly asserts that deceased has executed a Will which has been registered with the Sub-Registrar. In spite of this knowledge, the Petitioner did not think it appropriate to make a reference about the same in the plaint, as filed before the Trial Court. It is for the first time, by way of amendment application, filed on 9.7.1993, that the Petitioner wanted the Court to accept his stand that he acquired the knowledge about the existence of the Will only when the written statement came to be filed by the Respondent on 15.12.1990. The plea advanced on behalf of the Petitioner, in my view, is clearly belied from the documents placed on record; particularly the letters sent by the Petitioner to the concerned authorities would indicate that prior to April, 1990 the Petitioner was aware about the existence of. the Will. If this finding, as recorded by the Court below, cannot be taken exception to, then inevitably the proposed amendment, by way of application below Exh. 33 dated 19.7.1993, would be time barred.

4. The learned Counsel for the Petitioner further contends that even time barred claim can be raised by way of amendment. In this context reliance has been placed on the decision in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors.,. No doubt the Apex Court has observed that the power exercised was undoubtedly one within the discretion of the High Court and the discretion was not exercised on a wrong principle. The amendment did not really introduce a new case and that the application filed by himself showed that he was not taken by surprise, nor did he have to meet a new claim set up for the first time after

the expiry of the period of limitation. I would prefer to place reliance on the decision of the Apex Court in Radhika Devi v. Bajarangi Singh and Ors., which has taken a view that the claim set up by way of proposed amendment ought not to be permitted if it is barred by limitation, it was pressed after 3 years from the date of knowledge. The said view taken by the Apex Court is clearly applicable to the present case, for the Petitioner slept over the matter for more than 3 years in spite of acquiring the knowledge did not make reference of the factum of having acquired the knowledge of execution of Will in the plaint which was filed on 16.7.1990.

5. In my view, even if we were to hold that the proposed amendment was not time barred, even then the application deserves to be rejected, for the mandate contained in Order 2 Rule (2) Sub-Rule (2) it was not open to the Petitioner to set up a new claim on the basis of the same cause of action or pray for new reliefs as was sought to be done by way of this application. Order 2 Rule (2) clearly stipulates that the Petitioner could have set up such a new claim provided he had obtained leave of the Court white instituting the suit itself. This, obviously, was not done in the present case, and, therefore, even on this count the Petitioner cannot be permitted to carry out the proposed amendment which purports to seek new relief which the Petitioner could have included while instituting the suit filed by him in July, 1990.

6. It is however made clear that the Court below shall not be influenced by any of the observations made in this order while adjudicating the suit on merits between the parties.

7. Taking any view of the matter I find no reason to Interfere with the order under appeal. Hence dismissed.

8. Rule stands discharged. No order as to costs.

Parties to act on the copy of this    order duly authenticated    by Sheristedar  of the Court.