Yeole Akhada vs Mrs. Alka Namdeo Kadu
2013 Latest Caselaw 360 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD
                   WRIT PETITION NO. 8255 OF 2013




                                                                         
    Mrs. Mandabai Revannath Gade




                                                 
    Yeole Akhada, Rahuri Bk. Ta. Rahuri
    District Ahmednagar.                       .. Petitioner

    Versus




                                                
    1. Mrs. Alka Namdeo Kadu
       Died- through heirs.




                                    
    1A. Namdedo Ramchandra Kadu
                      
    1B. Sharad Namdeo Kadu

    1C. Satish Namdeo Kadu
                     
        R/o Yeole Akhada, Rahuri Bk.
        Ta. Rahuri, District Ahmednagar.

    1D. Mrs. Deepali Shantaram Chavan
      

         R/o Jategaon, Taluka Nandgaon
         District: Nandgaon.
   



    2.   Rahuri Municipal Council, Rahuri,
         Through Chief Officer,
         Rahuri Municipal Council,





         Taluka Rahuri Dsitrict Ahmednagar                .. Respondents


    Mr. Jiwan J. Patil i/by Mr. V. V. Parde for the Petitioner
    Mr. R. V. Naiknavare for Respondent





    Mr. Namdeo Ramchandra Kadu, party in person ( Respondent No.1A
    to 1D)

                          CORAM : S.S. SHINDE, J.

                          DATE      : 17th December, 2013









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    ORAL JUDGMENT:

1. Rule. Rule made returnable forthwith with the consent of the

parties and heard.

2. This writ petition takes exception to the order dated 23rd July,

2013 passed by the District Court-5, Ahmednagar below application

Exh. 61 in Regular Civil Appeal No.445of 2011.

3. The Petitioner herein is he original plaintiff and the

Respondent Nos. 1 and 2 are the original defendants in Regular

Civil Suit No. 179 of 2009 which is decided by the Civil Judge,

Junior Division, Rahuri, District Ahmednagar by the judgment and

order dated 21st October, 2011. Being aggrieved by the said judgment

and order, the respondents herein filed Regular Civil Appeal No. 445

of 2011 before the District Court Ahmednagar. In the said Regular

Civil Appeal, the Respondents herein filed an application Exh. 61 for

amendment of written statement. By the impugned order dated 23rd

July, 2013 the said application for amendment of the written

statement has been allowed subject to costs of Rs.2000/- to be paid by

the applicant to the non applicant. The matter is remanded back to the

trial Court by the District Court with the direction to re-cast the issues

on the amended written statement and after giving opportunity to both

3 wp8255-13 the prties adjudicate the said issues and send back the same to the

Appellate Court. The parties were directed to remain present before

the trial Court on 27th August, 2013.

4. Learned counsel for the petitioner invited my attention to the

grounds taken in the petition and annexures thereto and submits that

the impugned order is not sustainable, in as much as the reasons

assigned by the Appellate Court are not in consonence with the

mandate of Order 6 Rule 17 Proviso Code of Civil procedure.

ig It is

submitted that in fact there are no cogent reason, much less reasons

to allow the application filed by the respondent for amendment of the

written statement at the appeal stage. It is submitted that while

passing the impugned order, to some extent, the contention of the

petitioner has been accepted by the Appellate Court that the

respondents have not shown due diligence at the time of filing the

written statement, in as much as the proposed amendment which

defendant wish to incorporate in the written statement was within the

knowledge of the respondents at the time of filing written statement.

It is submitted that the Appellate Court has left it to the Trial Court to

re-cast the issues on the basis of amended written statement, and then

after giving opportunity to the parties to lead evidence, record

4 wp8255-13 findings, and sent back the same to the District Court. It is submitted

that such blanket order passed by the Appellate Court was de hors

the provisions of the Code of Civil Procedure. The learned counsel

appearing for the petitioner submits that the petition deserves to be

allowed.

5. The Respondent 1A namely Namdeo Ramchandra Kadu who

is appearing in person has invited my attention to the fact that the

other legal heirs of deceased respondent no.1 have authorised him to

plead and argue in this writ petition. He invited my attention to

various documents which are placed on record alongwith his say,

which is filed in the registry of this Court on 4th December, 2013.

According to him, his wife Mrs. Alka Namdeo Kadu is died and

prior to that, he was involved in providing medical treatment to her

and in that process, he could not pay proper attention to the pending

suit so as to include all aspects in the written statement which was

filed before the Trial Court. It is submitted that he was under mental

stress and also unaware of certain procedure, could not incorporate in

the main written statement that, the Suit is not filed within

limitation, necessary parties are not joined to the suit, description of

the properties given in the suit is not correct and the Civil Court has

5 wp8255-13 no jurisdiction to entertain the suit.

6. It is his submission that, all these aspects which were

supposed to be incorporated in the main written statement, but due to

the circumstances stated above, in application below Exh. 61, same

could not be incorporated. Therefore he submits that the impugned

order passed by the Appellate Appellate Court needs no interference.

7. When the respondent no.1A i.e. Party in person was

confronted with the suggestion that, if the District Court is directed to

hear the parties and adjudicate the issue of limitation, non rejoinder

of the parties, and the description of the property mentioned in the suit

is not correct and furthr the Civil Court had no jurisdiction to entertain

the suit, the party in person agrees to suggestion that, if all the four

points which he has raised in his application are considered by the

District Court by giving an opportunity to him to put forth his

contention and if necessary by producing relevant documents/

evidence, he is agreeable to send the matter back to the District Court

so as to decide the same on its own merits after giving opportunity to

both the parties.

8. I have heard the learned counsel appearing for the petitioner

6 wp8255-13 and also the party in person, representing respondent nos. 1 to 1D.

With the assistance of the parties, perused the grounds put forth in the

petition, annexures thereto and the impugned judgment passed by the

District judge-5, Ahmednagar.

9. Indisputably, the suit is filed in the year 2009 by the

petitioner plaintiff. In the event any prayer is made for amendment

of the plaint or the written statement, as the case may be, the

provisions of Order 6 Rule 17 proviso of the Code of Civil Procedure

are applicable and therefore, whenever such application is filed, the

Court is bound to refer the said provision and record the satisfaction

that inspite of due diligence, the party who wish to bring the proposed

amendment in the written statement could not incorporate the said

amendment in the main pleadings. In absence of such exercise, it

may not be appropriate to accept the prayer for amendment either in

the plaint or in the written statement.

10. It is true that the amendment in the plaint and amendment in

the written statement are not necessarily to be treated on same footing

as held by the Supreme Court in the case of Usha Balasaheb Swami

& Ors. v. Kiran Appaso Swami & Ors., (2007) 5 SCC 602 that,

7 wp8255-13 while considering the prayer for amendment in the written statement

the strict rules of pleadings available for amendment of the plaint

cannot be made applicable for the amendment of the written

statement and the Court should be liberal in considering the prayer for

amendment in the written statement. Even in written statement,

inconsistence pleas can be taken. However, in the facts of the present

case, when the application for amendment to the written statement is

filed by the respondents, that too at the appeal stage, it would be

incumbent upon the Appellate Court to take into consideration the

provisions of Order 6 Rule 17 proviso and then decide the

application, however such exercise by the appellate Court is missing

in the impugned order.

11. Apart from what is observed herein above, while allowing

the application for amendment of the written statement in paragraph 4

of the judgment, the Appellate Court has made the following

observations:

"I do agree and find considerable force in the submissions of learned advocate for the respondent. Because when appellant Namdeo Kadu himself has appeared in person, in earlier proceedings, then now by raising such contentions that for

8 wp8255-13 want of knowledge he want to amend some important issues in the Written Statement, cannot be considered at this belated

stage. Any how, to have just adjudication of all the issues arising in between the parties which remains to be pleaded in

the written statement, the in such case obviously, the appellant will cause prejudice and the interest and justice, it will be just to given any opportunity to the appellant to carry

amendment in the written statement. However, at this stage allowing the application Exh. 61, the appeal will have to be

remanded back to the trial Court, so that after amendment will be carried out, it will be necessary to give opportunity to

both the parties to lead evidence."

12. Mere perusal of the reasons recorded by the Appellate Court

would make it abundantly clear that, the Appellate Court was not

convinced for allowing such amendment. The Appellate Court has not

adverted to the provisions of Order 6 Rule 17 proviso. Secondly, upon

careful reading of the aforementioned observations of the Appellate

Court, it appears that there is no conscious application of mind to the

facts of the case and in such a manner, the application for amendment

of the written statement at the belated stage has been allowed by the

Appellate Court. In fact, it was possible for the concerned Court to

give reasons by adverting to the provisions of Order 6 Rule 17

proviso. However such exercise has not been done.

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13. It is true that the appeal is in continuation of the Suit and in

appropriate cases, when case is made out, in accordance with relevant

provisions, the Court can consider the prayer for amendment in the

written statement even at the belated stage. However, in respect of the

reasons assigned by the Appellate Court in para 4 of the impugned

judgment, this Court is of the opinion that the Appellate Court has not

given adequate and justifiable reasons for allowing a prayer for

amendment in written statement.

14.

Upon perusal of the application which was filed at Exh.

61 by the defendant i.e. Respondent 1A herein, it appears that

respondent no.1A wanted to raise issues that the suit filed by the

plaintiff was not within limitation; the plaintiff in Regular Civil Suit

No. 179 of 2009 has not joined all the necessary parties, which were

parties to Regular Civil Suit No. 89 of 2007; the description of the

property given in the suit is not correct and the Civil Court has no

jurisdiction to entertain the suit. All these points which the appellant

has raised before the District Court, the District Court is empowered

to adjudicate the said points and decide the same on merits in

accordance with law after giving opportunity to the parties to lead

evidence and put forth their contentions. It was not necessary for the

10 wp8255-13 District Court to send the matter back to the trial Court so as to

adjudicate the aforementioned points. The District Court is

empowered and had jurisdiction like the Court of original jurisdiction

to entertain all points which are raised for consideration including the

points raised by the appellant before the District Court. Section 107

of the Code of Civil Procedure reads thus:

107. Powers of Appellate Court? (1) Subject to such

conditions and limitations as may be prescribed, an Appellate Court shall have power?

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such

evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be

the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.(underlines added)

15. Upon careful perusal of Sub section 2 of Section 107 CPC,

the Appellate Court, subject to what is stated in Sub section 1, has the

same powers and shall perform as nearly as may be the same duties as

are conferred and imposed by Civil Procedure Code on Courts of

11 wp8255-13 original jurisdiction in respect of suits instituted therein. Therefore it

was within the jurisdiction/power of the District Court/Appellate

Court to adjudicate the points raised by the appellant and decide the

same on merits either way after giving opportunity to the parties to

put forth their contentions. The blanket order of remand to the trial

Court, that too without specifying the issues and further giving liberty

to the trial Court to recast all the issues on the basis of amended

written statement, would amount to de novo trial.

16.

Therefore, in the light of discussion herein above, inevitable

conclusion is that, the impugned order passed by the District Judge, 5

Ahmednagar below Exh. 61 dated 23rd July, 2013 cannot sustain in

law. However, the respondent no.1A- party in person who is

representing respondent nos. 1 a to 1D has no objection if the points

which he has raised in the application for amendment to the written

are considered by the District Court after giving opportunity to the

parties to lead evidence and put forth their contentions. Therefore this

Court deem it appropriate to relegate the parties before the District

Court so as to decide the appeal on all points raised by the parties

including the points of limitation, non joinder of necessary parties,

description of the property and further that the Civil Court has no

12 wp8255-13 jurisdiction to entertain the suit.

17. In that view of the matter following order :

i. The impugned order dated 27th July, 2013, passed by the District Judge Ahmednagar below Exh.61 in RCA No. 445 of 2011 is quashed and set aside.

ii. The District Court is directed to consider the points raised by the appellant i.e. point of limitation, point of non joidner of

necessary parries, description of the property and the Civil

Court had no jurisdiction to entertain the suit. Even otherwise, the appellant is entitled to raise such issue in

the appeal.

iii. Since the appeal is pending, if necessary, the District Court

shall frame necessary points for its determination on the

aforesaid points raised by the appellant and after giving opportunity to both the sides to lead evidence, to file documents and put forth their contention, decide the appeal

on its own merits, in accordance with law.

iv. It is made clear that so far as merits of the Appeal is concerned, it is for the District Court to consider the merits

and decide the Appeal. This Court has not expressed any opinion on the merits of the case.

v. The petition stands disposed of in the above terms.

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     vi.     Rule is accordingly discharged.

At this stage, Respondent- the party in person seeks liberty to

apply for certified copies of the documents which are placed on

record before this Court. In case, such application is filed, certified

copies of those documents should be supplied by the Registry in

accordance with the relevant procedure.

                                      
    JPC
                         ig               ( S.S. SHINDE, J. )