Bombay High Court
Khasagi (Private) Devi Ahilyabai ... vs Shri. Audumbar Gangadhar Nikate on 2 December, 2015
Bench: R.M. Savant
(10)-WP-2956-13 group matters.doc 02.12.2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2960 OF 2013
Khasagi (Private) Devi Ahilyabai Holkar )
Charitable Trust, through its trustees )
1) Maharani Ushadevi Satishchandra )
Malhotra, President & Settler, )
2) Shri Satishchandra Malhotra, )
Trustee )
3) Hon. President of India, Delhi
ig )
through trustee )
4) Hon. Commissioner Indore Division )
Indore (Madhya Pradesh) )
5) Hon. Superintendenting Engineer, )
P & R, P.W.D. Indore Circle )
through Power Of Attorney )
Holder of the Trust Shri Madhukar )
Karbhari Pawar, R/o Holkar Baba Rang )
Mahal, Chandwad, Dist Nashik ) ..Petitioners
Versus
Shri Audumbar Gangadhar Nikate )
Age-Adult, Occ Business )
R/o Municipal No.2340/23-B, )
Mahadwar, Holkar Wada, At Post & )
Tal Pandharpur, Dist Solapur ) ..Respondent
WITH
WRIT PETITION NO.2956 OF 2013
Khasagi (Private) Devi Ahilyabai Holkar )
Charitable Trust, through its trustees )
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1) Maharani Ushadevi Satishchandra )
Malhotra, President & Settler, )
2) Shri Satishchandra Malhotra, )
Trustee )
3) Hon. President of India, Delhi )
through trustee )
4) Hon. Commissioner Indore Division )
Indore (Madhya Pradesh) )
5) Hon. Superintendenting Engineer, )
P & R, P.W.D. Indore Circle )
through Power Of Attorney
Holder of the Trust Shri Madhukar
ig )
)
Karbhari Pawar, R/o Holkar Baba Rang )
Mahal, Chandwad, Dist Nashik ) ..Petitioners
Versus
Shri Eknath Bhagwat Kakade )
Age-Adult, Occ Business )
R/o Municipal No.2340/23-B, )
Mahadwar, Holkar Wada, At Post & )
Tal Pandharpur, Dist Solapur ) ..Respondent
WITH
WRIT PETITION NO.2957 OF 2013
Khasagi (Private) Devi Ahilyabai Holkar )
Charitable Trust, through its trustees )
1) Maharani Ushadevi Satishchandra )
Malhotra, President & Settler, )
2) Shri Satishchandra Malhotra, )
Trustee )
3) Hon. President of India, Delhi )
through trustee )
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4) Hon. Commissioner Indore Division )
Indore (Madhya Pradesh) )
5) Hon. Superintendenting Engineer, )
P & R, P.W.D. Indore Circle )
through Power Of Attorney )
Holder of the Trust Shri Madhukar )
Karbhari Pawar, R/o Holkar Baba Rang )
Mahal, Chandwad, Dist Nashik ) ..Petitioners
Versus
1 Shri Damodhar Shrinivas Rathi )
Age-Adult, Occ Business )
2 Shri Sunil Shrinivas Rathi
ig )
Age-Adult, Occ Business )
Both R/o Municipal No.2340/23-B, )
Mahadwar parisar, Holkar Wada, )
At Post & Tal Pandharpur, Dist Solapur ) ..Respondent
WITH
WRIT PETITION NO.2958 OF 2013
Khasagi (Private) Devi Ahilyabai Holkar )
Charitable Trust, through its trustees )
1) Maharani Ushadevi Satishchandra )
Malhotra, President & Settler, )
2) Shri Satishchandra Malhotra, )
Trustee )
3) Hon. President of India, Delhi )
through trustee )
4) Hon. Commissioner Indore Division )
Indore (Madhya Pradesh) )
5) Hon. Superintendenting Engineer, )
P & R, P.W.D. Indore Circle )
through Power Of Attorney )
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Holder of the Trust Shri Madhukar )
Karbhari Pawar, R/o Holkar Baba Rang )
Mahal, Chandwad, Dist Nashik ) ..Petitioners
Versus
Shri Pandurang Yallappa Wadekar )
Age-Adult, Occ Business )
R/o Municipal No.2340/23-B, )
Mahadwar Parisar, Holkar Wada, )
At Post & Tal Pandharpur, Dist Solapur ) ..Respondent
WITH
WRIT PETITION NO.2959 OF 2013
Khasagi (Private) Devi Ahilyabai Holkar )
Charitable Trust, through its trustees )
1) Maharani Ushadevi Satishchandra )
Malhotra, President & Settler, )
2) Shri Satishchandra Malhotra, )
Trustee )
3) Hon. President of India, Delhi )
through trustee )
4) Hon. Commissioner Indore Division )
Indore (Madhya Pradesh) )
5) Hon. Superintendenting Engineer, )
P & R, P.W.D. Indore Circle )
through Power Of Attorney )
Holder of the Trust Shri Madhukar )
Karbhari Pawar, R/o Holkar Baba Rang )
Mahal, Chandwad, Dist Nashik ) ..Petitioners
Versus
Shri Pandurangsa Narayansa Irkal )
Age-Adult, Occ Business )
R/o Municipal No.2340/23-B, )
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Mahadwar, Holkar Wada, At Post & )
Tal Pandharpur, Dist Solapur ) ..Respondent
Mr. Vishwanath Talkute, for the Petitioners in all the Petitions.
Mr. R. M. Haridas, for the Respondent in all the Petitions.
CORAM : R.M. SAVANT, J.
DATE : 2nd DECEMBER, 2015
ORAL JUDGMENT
1. Rule, with the consent of the Learned Counsel for the parties
made returnable forthwith and heard.
2. The above Petitions take exception to the identical orders all
dated 04.02.2013 passed by the Learned Joint Civil Judge, Junior Division,
Pandharpur, by which order the applications filed by the Plaintiffs in each
of the suits for amendment of the plaint in so far as the description of the
suit property is concerned, came to be rejected.
The facts necessary to be cited for adjudication of the above
Petitions can in brief be stated thus:-
3. The Petitioners in each of the above Petitions are the original
Plaintiffs. The Petitioner is a Private Charitable Trust and the Petitioner
Nos.1 to 5 herein are the trustees of the said Trust. The Respondents in
each of the above Petitions are the Defendants to the suits in question filed
by the Petitioners and are their tenants. The said suits have been filed for
possession of the suit premises on the ground of construction of
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permanent structure, for reasonable and bonafide requirement of the Trust
and for possession of the premises on the ground the same being
dilapidated and for recovery of rent. In the said suits, the Defendants filed
their identical written statement and in paragraph 2 thereof, it has been
stated that the description of the suit premises is incomplete and skeletal
and from the said description, it is not possible to identify the suit
premises. It is further averred that the said description is not acceptable to
the Defendants.
4. The said suits proceeded to trial on the basis of the issues
which were framed, which were common to all the suits. In so far as the
evidence is concerned, the evidence of the witness No.1 of the Plaintiff is
over in RCS Suit No.76 of 2005 and the Defendants have adopted the
cross-examination of the Plaintiff in the said suit in the other suits. It
appears that in the cross-examination, questions were asked revolving
around the description of the suit property. The trial was at the stage
where the evidence of witness No.2 of the Plaintiff is to be recorded. It is
at the said stage that the applications for amendment of the plaint so as to
give a proper description of the suit property came to be filed. The said
applications were identical and it is stated in paragraph 1 of the said
applications that to bring clarity in the description of the suit property, it is
necessary to give better particulars and therefore the amendment is sought
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so as to clarify the description of the suit property. It is further stated that
to remove the technical hitches if any and to see to it that there no room
for ambiguity in the description of the suit property that the amendment
has been sought. The said applications were replied to on behalf of the
Defendants by their reply dated 28.01.2013. It was stated in the said reply
that a right has accrued in favour of the Defendants in view of the
description of the suit property as given in the plaint and if the
amendment is allowed, the accrued right would be taken away. The Trial
Court considered the said applications and has by the impugned order
dated 04.02.2013 rejected the said applications. The gist of the reasoning
of the Trial Court is that the trial having been commenced in each of the
suits, the amendment could be allowed, only if the Plaintiffs explain the
circumstances for filing the said applications at the said stage. It is further
held by the Trial Court that in view of the cross-examination of the first
witness of the Plaintiffs and admissions which have been given therein, a
right has accrued to the Defendants and hence, if the application allowed,
it would take away the effect of admissions. The Trial Court lastly held
that having regard to the mandate of Order 6 Rule 17 of the CPC, the
Plaintiff could not be permitted to amend the plaint at the said stage. As
indicated above, it is the said orders dated 04.02.2013 passed in each of
the applications that are taken exception to in each of the above Petitions.
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5. Heard the Learned Counsel for the parties.
6. The Learned Counsel for the Petitioners Mr. V. S. Talkute
would contend that by the amendment what is sought to be done is to give
better description of the property so as not to leave scope for any technical
flaw if ultimately the suit is decreed in favour of the Plaintiffs. The
Learned Counsel by referring to the application in RCS 74 of 2005 would
contend that the amendment sought is only clarificatory in nature and
would help the Court in adjudicating the suit completely and effectually.
The Learned Counsel would contend that the Plaintiffs have accepted the
position that they are the tenants of the suit property. However, they are
making a grievance that the description of the suit premises is incomplete
or there is a skeletal description from which it is difficult to identify the
suit premises. The Learned Counsel in pursuit of the applications for
amendment, sought to place reliance on the judgment of the Apex Court
reported in (2005) 13 SCC 89 in the matter of Sajjan Kumar Vs. Ram
Kishan. It was the submission of the Learned Counsel that in identical
facts in the said case the Apex Court has held that the application for
amendment at the belated stage in the description of the property can be
allowed to avoid future complications.
7. Per contra, the Learned Counsel appearing for the
Respondent/original Defendant Mr. R. M. Haridas would support the
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impugned order. It is the submission of the Learned Counsel that the
applications filed by the Plaintiffs are bereft of any reasons as to why the
amendment sought was at the said stage when the objection regarding
description of the suit property was taken in the written statement in the
year 2005 and thereafter evidence of the witness of the Plaintiff was
recorded in the year 2010. The Learned Counsel would seek to sustain the
impugned order on the ground that the Plaintiffs have not satisfied the
due diligence test. In support of the contentions, the Learned Counsel
sought to place reliance on the judgments of the Apex Court reported in
2012(4) Mh.L.J. 40 in the matter of J. Samuel and others Vs. Gattu
Mahesh and others, (2007) 14 SCC 129 in the matter of Shiv Gopal Sah
alias Shiv Gopal Sahu Vs. Sita Ram Saraugi and others and the
judgment of this Court reported in 2012(6) ALL MR 268 in the matter of
Sasa Detergent Division Vs. Shri. Damodar S. Mudliyar & Ors. It was
the submission of the Learned Counsel that in the facts and circumstances
of the case, the orders passed by the Trial Court rejecting the applications
for amendment could not be found fault with.
8. Having heard the Learned Counsel for the parties, I have
considered the rival contentions. The issue that arises for consideration is
whether the Plaintiffs are entitled to be permitted to amend the plaint so
as to give better particulars of the suit premises involved in each of the
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suits. In the said context, it is required to be noted that it is not the case of
the Defendants that they are not the tenants of the Plaintiff Trust. The
stand taken by the Defendants in each of the suits is that the description of
the suit premises is incomplete and also skeletal and from the said
description it is not possible to identify the suit premises. Hence, one fact
that is required to be borne in mind is that the Defendants do not dispute
that they are the tenants of the Plaintiffs Trust. They also do not outright
reject the description of the suit property as given in the plaint in each of
the suits. Their stand is that the said description is incomplete and also
skeletal and from the said description, it is not possible to identify the suit
property. In my view, it is in the said context that the application was
required to be considered. It is also required to be noted that though the
objection was raised in the written statement in the year 2005, it is in the
year 2010 that the Defendants put questions to the witness of the Plaintiffs
revolving around the description of the property. It is at the said stage,
therefore, the Plaintiffs realized that if the description as given in the
plaint is continued, may be it would result in a technical difficulty for the
Plaintiff in prosecution of the suit and in the event the suit is decreed, for
execution of the decree.
9. In so far as proviso to Order 6 Rule 17 of the CPC is
concerned, no doubt the said proviso postulates that the applicant seeking
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an amendment has to satisfy the due diligence test before he can be
permitted to amend the pleadings. In the instant case, it is not as if that
there is no description of the suit property or that the description is so
defective that an objection is raised on the said ground. The objection
taken to the description is on the ground that same is incomplete and
skeletal and from the said description, it is not possible to identify the suit
premises. Hence, it is not a case where the original description given in
the plaint is sought to be taken away and replaced by a totally new
description, but what is sought to be done is by maintaining the original
description in the plaint, addition is sought to be made so as to give more
clarity to the description. As indicated above, the alarm bells were rung
when the Defendants in each of the suits put questions to the Plaintiffs'
witness in the cross-examination revolving around the description of the
suit property. It is also required to be noted that the suit is not at the stage
where the situation is irreversible. As indicated above, only the evidence of
the first witness of the Plaintiffs is complete and the suit was at the stage
where the evidence of the second witness was to begun. At this stage, it
would be gainful to refer to the judgment of the Apex Court in Sajjan
Kumar's case (supra). In the said case, the Apex Court was concerned with
almost identical facts as in the instant case. In the said case also, though
an objection was raised to the description of the suit property as given in
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the written statement, the amendment to the description was moved long
thereafter. The Apex Court held that though there was a delay in moving
the amendment, the proposed amendment was necessary for the purpose
of bringing to the fore the real question in controversy between the parties
and the refusal to permit the amendment would create needless
complications at the stage of execution in the event of the Plaintiff
succeeding in the suit. In my view the aforesaid judgment in Sajjan
Kumar's case (supra) applies on all fours to the case of the Plaintiff in the
instant suits, as to avoid future complications and proceedings, it would be
appropriate to allow the Plaintiff to amend the plaint at this stage.
10. Now, coming to the judgments cited on behalf of the
Respondents in each of the above Petitions. In so far as the judgments of
the Apex Court in J. Samuel's case (supra) and Shiv Gopal Sah's case
(supra), the said judgments are revolving around the proviso to Order 6
Rule 17 of the CPC, wherein, in the said judgments the Apex Court has
held that unless the due diligence test is satisfied, the applications would
not even be considered by the concerned Court. In so far as the judgment
of this Court in Sasa Detergent Division's case (supra) is concerned, the
facts in the said case stand apart from the facts in the present case, as in
the said case the amendment to the pleadings were sought on the basis
that the Plaintiff is dominus litus and entitled to amend the plaint and that
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Order 6 Rule 17 would not be an impediment for the Plaintiff to amend
the plaint. In my view, in the facts of the instant case which have been
narrated hereinabove at some length, the said judgments would not come
in the way of the Plaintiff in seeking the amendment. The amendment if
allowed would also result in avoidance of multiplicity of proceedings.
However, since there is a delay in moving the application for amendment
especially having regard to the fact that the cross-examination of the first
witness of the Plaintiff was over in the year 2010 and the applications
were moved in the year 2013, the Plaintiffs are required to be put to
terms. Hence, the impugned orders all dated 04.02.2013 in each of the
Petitions are required to be quashed and set aside and accordingly
quashed and set aside. The Petitions are allowed to the said extent. In the
facts and circumstances of the case, the Petitioners to pay costs of
Rs.3000/- to each of the Defendants in each of the suits. The same to be
deposited in the Trial Court within four weeks from date. Amendment in
the plaint to be carried out within six weeks from date on the Plaintiffs
producing evidence of payment of costs as above. The Defendants in each
of the suits would be entitled to withdraw the costs. The Petitions are
allowed to the aforesaid extent. Rule is accordingly made absolute, with
parties to bear their respective costs of the Petitions.
[R.M. SAVANT, J]
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