Vasudeobhai Jadhaoji Rathod And ... vs Neela Prabhulal Rathod And Anr.
2004 Latest Caselaw 1307 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. By this petition under Articles 226 and 227 of the Constitution of India the petitioners/original defendants challenged order dated 6th September, 2004 passed by Second Joint Civil Judge, Senior Division, Nagpur below Exh. 122 in Special Civil Suit No. 354 of 1996 whereby the respondent No. 2 (original plaintiff No. 2, has been permitted to amend the plaint in order to incorporate challenge to alleged Wills executed by one Jodhaoji son Laddhu Rathore, original defendant No. 12 The suit has been made time bound by this Court by its judgment dated 20th April, 2004 delivered in Civil Revision No. 345 of 2000 and the direction was to dispose of the said suit within period of three months excluding period of summer vacation.

2. Advocate Rohit Deo appearing for petitioners contends that by amendment an irrelevant plea and claim has been allowed to be added and the said claim has no bearing on original controversy involved in the suit. He contends that the learned Court below while allowing the application for amendment has not considered nature of the suit as filed and the effect of amendment on it. He contends that the trial Court has also not appreciated necessity of amendment in the facts and circumstances of the case before it.

3. As against this Advocate Kotwal appearing for the original plaintiff No. 2 and respondents herein has contended that the challenge in the suit was very much before the Court and need for amendment is also pointed out by him in his application. He contends that the Court below has found that conjoint reading of the plaint and proposed amendment reveals that there are seed of proposed amendment in the plaint. He therefore, contends that the Court below has considered the plaint as filed as also amendment and has applied its mind. He contends that the learned trial Court has also considered the law on the point and has allowed the amendment after finding that it is belated. He therefore, contends that no case is made out for interference in writ jurisdiction. He has relied upon the cases which are reported, at 1984(1) S.C.C. 668, Haridas Aildas Thadani v. Godrej Rustom Kermani, 2001(8) S.C.C. 97, Estralla Rubber v. Dass Estate (P.) Ltd, 2005(2) Bom.C.R. (S.C.) 273 : 2004(6) S.C.C. 415, Pankaja v. Yellappa, and 2002(7) S.C.C. 559, Sampath Kumar v. Ayyakannu, to contend that pleadings are allowed to be amended liberally at pre-trial stage and even if it is found that claim made by amendment is time barred, if granting of amendment is really sub-serves ultimate cause of justice is avoid further litigation, amendment must be allowed. He contends that delay as such cannot be ground for rejecting prayer for amendment. He contends that the test is whether any prejudice is being caused to the other side by allowing the amendment. He contends that the High Court cannot interfere in exercise of discretion by trial Court as there is no serious dereliction of duty or fragrant violation of fundamental principle of law or justice. He contends that nature of the suit is not being altered nor any prejudice is being caused to the respondents / original defendants. He therefore, states that the petition as filed is liable to be dismissed. He has also relied upon the judgment reported at 2001(Supp.) Bom.C.R. 803 : 2001(3) Mh.L.J. 151, Mudra Salt & Chem v. Collector, Thane, and A.I.R. 1986 Orissa 133, Dhirendra Kumar v. Rashmani Dei, to contend that while considering amendment application, Court cannot pre-judge merits of the proposed amendment.

4. Rule made returnable immediately and heard by consent. I have considered the matter in the light of these arguments and also the law as cited.

5. Perusal of the plaint reveals that it is suit for declaration, permanent injunction and for recovery. The suit was filed by present respondent No. 1 Smt. Neela as sole plaintiff initially. She has stated that the dispute in the suit relates to plot No. 19 situated at Shankar Nagar Square, Shivaji Nagar (Dharampeth Extension), Ward No. 17, Nagpur area 17385 sq. ft. with five storeyed building constructed on it. It is her case that the plot was acquired initially on lease from Nagpur Improvement Trust by Jadhaoji son of Laddhu Rathore and Dayaram son of Laddhu Rathore (HUF). She contends that the suit plot was then, acquired by 12 persons as co-owners and those 12 persons are, she herself and defendant Nos. 1 to 11 in the suit who are the present petitioners on lease from the said HUF on rent of Rs. 12,000/- per annum w.e.f. 5-5-1984. She contends that the original defendant Nos. 1 to 3 i.e. present petitioner Nos. 1 to 3 who are from amongst the said 12 co-owners hold power of attorney for and on behalf of other con-owners to manage it. She has contended that every co-owner has contributed a definite share in the said lease as well as in the construction of the five storeyed building on it. She contends that the lease is indivisible and in view of the construction made on it, the petitioners (defendants) cannot be permitted to take stand that agreement of lease was for a limited period only and after expiry of the period of lease, the lease stand extinguished and the plot including superstructure stand reverted back to the HUF. The prayers made in the plaint are consistent with this contention. The lease deed between HUF and the alleged co-owners including original plaintiff contains clause by which property reversed back to the original owners and by prayer (1) in the plaint declaration sought is that the said clause is bad in law and contrary to the provisions of Transfer of Property Act. By second prayer, declaration sought is that in view of perpetual lease, property leased cannot reverted back to the original owners. Third prayer is for declaration that the alleged majority decision taken by the petitioners not to insist upon renewal of lease deed of suit plot is mala fide, bad in law and not binding upon her. Fourth prayer is for declaration as co-owner in the said building. Other prayers are consequential to this prayer.

6. Husband of plaintiff No. 1 was initially a defendant and was later on transposed as plaintiff No. 2. The application for amendment moved by original plaintiff No. 2 (present respondent No. 2) now needs to be perused. In this application in para No. 3 the respondent No. 2 has pointed out that recently he came to know that the defendants in suit have now put forward a document alleged to be Wills and additional Will of his late father Jadhaojibhai Laddhu Rathore and according to it entire property is bequeathed to petitioner Nos. 1 and 2 who are defendant No. 1 and 2 in the suit. He has contended that it has therefore, become necessary to challenge the said Wills and therefore, amendment raising challenge to the Wills has been used. The proposed prayer clauses are also sought to be added accordingly for declaration that the alleged Wills of Late Jadhaojibhai are null and void and inoperative and do not confer any right, title or interest on the petitioners. The prayer for permanent injunction restraining the petitioners from acting upon the said Wills or executing the same is also sought to be added.

7. From the arguments of parties it appears that the respondent No. 2 i.e. plaintiff No. 2 has instituted proceedings before different Courts and authorities and one such civil suit is pending at Balaghat Court (M.P.) seeking declaration that Ambika Rice Mill is joint family property. He has also challenged the mutation entries taken in the name of present petitioner Nos. 1 and 2 before different authorities including Tahsildar at Nainpur (M.P.) and Superintendent of Land Records at Nagpur. In answer to that suit the present petitioners have produced Will/Wills as alleged by the respondent No. 2, The learned trial Court has allowed amendment by giving reason that the amendment is necessary to protect rights of plaintiff before it. It has found that the amendment does not a cause any prejudice to the present petitioners and it has also held that if we read the plaint and proposed amendment application together, it cannot be said that there is no seeds of proposed amendment in the plaint. It has further held that the amendment application has been moved belatedly. It has further held that mere delay cannot be the ground to reject amendment and Courts cannot be hyper technical but have to be liberal while allowing the amendment. It has also held that the amendments are to be allowed in pleadings to avoid uncalled for multiplicity of litigations. From order it is also apparent that the trial Court is aware to the fact that the suit is already made time bound by this Court.

8. However, perusal of the said order also reveals that the learned Court has not applied its mind to find out whether the amendment as proposed is necessary to decide the controversy involved before it. It has not considered the nature of the suit filed before it and the impact of proposed amendment on it. There is no application of mind to find out whether alleged Will/Wills of Late Jadhaojibhai are relevant for deciding the suit at all. The trial Court has framed issues at Exh. 101 and issues read as under :

"1. Whether suit is filed within limitation?

2. Whether suit is tenable in view of provisions of Section 69(2) of the Partnership Act?

3. Whether J.L. Rathore and D.S. Rathore are necessary parties?

4. Whether suit property is joint family property?

5. Whether plaintiff has 15% joint interest in the suit property ?

6. Is plaintiff entitled to reliefs claimed?

7. What order and decree?"

One of the issues to be decided by the trial Court is whether the suit property is joint family property. The said plea is specifically raised in her suit by the original plaintiff No. 1 i.e. present respondent No. 1 who happens to be the wife of present respondent No. 2. The contention that the clause in lease deed whereby plot reverts back to HUF is main contention in the suit and the grounds is in pursuance of lease construction has been made and all 12 persons have contributed for raising that construction and are therefore, joint owners of the property. It will thus, be seen that if the suit is decreed, the trial Court would be holding that the said clause in lease deed is not valid and is inoperative. With the result, the suit property will be held to be joint family property.

9. As against this, if the suit is dismissed, the trial Court will be accepting that the clause in lease deed about reverting back of the suit property to original owners is valid, and with the result, the suit plot and construction thereon will go back to the original owners namely Jadhaojibhai Rathore and Dayaram Shantilal Rathore (HUF). Thus, the will of Late Jadhaojibhai has got no role to play so far as decision of this controversy is concerned. It is not the case of respondent No. 2 that the petitioners have claimed exclusive ownership in them on the basis of alleged Will/Wills of the deceased Jadhaojibhai. It is thus, clear that issue regarding Will is foreign to the decision of all controversies involved between the parties. It is not necessary to consider the validity or otherwise of the said Will/Wills for determination of controversy as raised before the trial Court or for declaration of issues involved before it.

10. The Wills relate to other properties also and if the issue regarding validity of the Will is allowed to agitate in this suit where only one property which is taken on lease from HUF by the original plaintiffs alongwith other joint owners (as mentioned in the suit), it would be enlarging the very compass of the suit and infact, it would be substitution of the new cause of action and new suit for the original suit which is of limited nature. It is clear that the learned trial Court, has not considered all these aspects.

11. Perusal of the cases on which reliance has been placed by the respondent/plaintiffs reveal that amendments as are directed towards putting forth and seeking determination of real questions in controversy between the parties are to be permitted. Amendments must be necessary for proper and effective adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings in relation thereto. Here as already observed above, the validity or invalidity of the Will has got no bearing on the dispute which is being considered by the learned trial Court. On the contrary, it is outside the scope of said dispute. It appears that therefore, only the defendants have also not produced the said Wills on record of the civil suit. The learned trial Court has by allowing amendment widened the scope of the suit and also widened the scope of controversy. Such amendment is totally unnecessary in the facts and circumstances of the case.

12. Though, the learned trial Court has correctly appreciated rulings of Hon'ble Apex Court to which reference is made above, the learned Court has failed to find out the necessity of proposed amendment in so far as suit before it is concerned. It is thus clear that there is failure on its part to exercise jurisdiction available to it and there is also error apparent which needs to be corrected by this Court in exercise of its writ jurisdiction.

In the circumstances, the order dated 6-9-2004 passed by Second Joint Civil Judge, Senior Division, Nagpur below Exh. 122 in Special Civil Suit No. 354 of 1996 is herby quashed and set aside. The writ petition is allowed. Rule made absolute in the above terms. No order as to costs.