Bombay High Court
Shanti Ramesh Galani And Ors vs Anandijibhai Mojanibhai ... on 23 June, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10719 OF 2012
1. Shanti Ramesh Galani PETITIONERS
Age - 56 years, Occ - Business
W/o Ramesh P. Galani,
No.10, Saptrshrangi Colony,
Maleria Office, Sakri Road,
Dhule
At present Block No.P-2, Room No.8/9,
Kumarnagar, Sakri Road, Dhule
2.
Kum. Bharti Ramesh Galani,
Age - 31 years, Occ - Nil
R/o As above
3. Bhaat Ramesh Galani,
Age - 26 years, Occ - Business,
R/o As above
4. Sau. Jyoti Arun Bhatiya,
Age - 35 years, Occ- Nil
R/o As above
VERSUS
1. Anandibhai Mohanjibhai Bhesniya RESPONDENTS
(Died) LRs.
1A. Dinesh Anadibhai Bhesnia,
Age - Major, Occ - Business
R/o Gandhi Nagar, Behind Prakash Theatre,
Parola Road, Dhule
At present Block No.A-5
Nillamber Bunglow I, Narayan School,
Kaa Pass, Wagadia Ring Road,
Dabhoi, Vadodara (Gujrat)
2. Pralhad s/o Rajaram Patil,
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Age - Major, Occ - Business
3. Narayan s/o Rajaram Patil,
Age - Major, Occ - Nil
4. Guddi Rajaram Patil,
Age - Major, Occ - Nil
Respondents No.2 to 4
R/o Narwhal, Taluka and District - Dhule
(Respondents No.2 to 4 are LRs of 10-A)
5. Dineshkumar Rasiklal Agrawal,
Age - Major, Occ - Business,
R/o Railway Station Road,
Near Court, In front of Snheenagar,
Near Maratha Boarding, Dhule
6. Umesh Rasiklal Agrawal,
Age - Major, Occ - Business
R/o As above
7. Rajesh Rasiklal Agrawal,
Age - Major, Occ - Business,
R/o As above
8. Meerabai Rasiklal Agrawal,
Age - Major, Occ - Household,
R/o As above
9. Khsubu Dineshkumar Agrawal
Age - Major, Occ - Household
R/o As above
10. Rajaram Bhaga Patil (Died) LRs
10A Sonubai Rajaram Patil (Died)
LRs - respondents No.2, 3 and 4
10B Ashabai Rajaram Patil (Died)
LR already on record 10C
10C Indubai Suresh Patil,
Age - Major, Occ - Nil
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(Respondent No.10C is LR of respondent No.10B)
10. Kum. Dippa Ramesh Galani,
Age - Major, Occ - Nil
R/o As above
11. Kum. Roma Ramesh Galani,
Age - Major, Occ - Nil
R/o As above
12. Sau. Kalpana Hemant Kapadiya,
Age - Major, Occ - Nil
R/o Lotas Narsari Plot No.26,
Lane No.6, NICIMIDC,
Satpur, District - Nashik
ig .......
Mr. Kishor C. Sant, Advocate for the petitioners
Mr. Subodh P. Shah, Advocate for respondent No.6
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 23rd JUNE, 2016
ORAL JUDGMENT:
1. Rule. Rule made returnable forthwith and heard Mr. Sant,
learned advocate for the petitioners and Mr. Shah for
respondents No.5 to 9 finally by consent.
2. It is plaintiffs' writ petition against an order dated 5 th
December, 2012 upon an application Exhibit-170 in Regular Civil
Suit No. 440 of 1994 whereunder request of the plaintiffs for
amendment to plaint has been declined by Joint Civil Judge,
Junior Division, Dhule.
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3. The petitioners contend that the trial court, under the
impugned order, has committed grave error in declining the
request in application Exhibit-170, since largely the law as holds
field, is that the courts ought to be liberal while considering
applications for amendment of pleadings. Learned advocate
contends that despite making reference to the guidelines those
would regulate consideration of amendment application, as
narrated under paragraph No.4 of the impugned order, the court
went on to reject the application. Learned advocate goes on to
submit that the amendment was necessitated after written
statement had been filed by the respondent - defendant No.7,
whereunder there is reference to that part of property having
been acquired and compensation being distributed and it was
thereupon, the amendment application had been moved
immediately in the year 2012. He submits that having regard to
aforesaid, the matter has not been appreciated by the learned
judge properly and in the process, the impugned order got
overwhelmed by the considerations which may not be germane
for consideration of application for amendment. Learned
advocate further submits that in the extreme case of unlikely
consideration of this writ petition, costs may remedy the
situation.
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4. Countering aforesaid submissions, Mr. Shah, learned
advocate emphasizes the background in which the matter will
have to be considered. He refers to that the property under the
suit had been purchased Benami in the name of plaintiff No.1,
way back in 1964. In 1983, suit had been instituted by the real
owner against the Banami holder seeking declaration of
ownership and further that the land all along had been in
possession of the real owner and was being dealt with as such,
by him. Possession of the land had not at all been parted with to
any person before transactions in respect of the same had taken
place subsequently after decision in the suit of 1983 in favour of
the real owner. Suit of 1983 had been decreed in the year 1989.
During pendency of the suit, the property purportedly was sold
by present plaintiff No.1 to plaintiff No.2. Even after the decree
in 1989, the suit seeking declaration that decree of 1989 had
been null, has been instituted in 1993, which is obviously outside
the period of limitation. Way back in 1998, the real owner had
parted with and transferred suit property in favour of present
respondents No.5 to 9 - defendants No.5 to 9 for a valuable
consideration under a registered instrument. The property was
being enjoyed by the purchasers - defendants No.5 to 9 as its
absolute owners. With the passage of time, certain portion of the
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purchased property had been acquired for road widening and its
compensation had also been paid to the land holders on record.
Revenue record was all along maintained as per transactions
initially in favour of the real owner Anandibhai and subsequently
the purchasers. At no point of time, there had ever been
semblance of resistance to aforesaid events / happenings or any
curative measure had ever been taken.
5. Over and above this, he submits that even by own saying
of the petitioners that they came to know about aforesaid events
after obtaining copies of revenue record, no immediate
movement had been made to arrest the situation. He contends
that after getting revenue record, present respondents No.5 to 9
were brought on record by an application Exhibit-88. While doing
so, the petitioners were aware about that defendants No.5 to 9
had been purchasers of the property under registered instrument
in 1998, yet no further action challenging transaction of 1998
had been taken. It was only in November, 2012, application
came to be moved for amendment of the plaint trying to take
props of filing of written statement by defendant No. 7. Having
regard to aforesaid, the court has properly gauged the facts and
its effect. The events quite eloquently according to him exhibit
not only non challence to the court proceedings but also culpable
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negligence to a huge extent. According to him, the amendment
is a discretionary power of the court and exercise of discretion in
this particular case cannot be faulted with for, order is a well
reasoned order and is in due compliance of the requisite judicial
principles including the principles of justice, equity and good
conscious. He submits that the procedure and the court process
cannot be allowed to be overstretched and in this case those
have been stretched to the limits and in the process the court
could not have, arrested breaking happening on over-stretching.
He thus, supports the impugned order.
6. The position emerges that the impugned order has taken
into account aforesaid factual aspects, which are largely not
disputed. Though learned advocate for the petitioner has
vehemently argued that the point of knowledge for filing written
statement was 2012, the position shows the same has been
pleaded in order to suit convenience of the claims being made.
The factual position shows that the matter had been pending
since 1994, the property had been parted with in 1998 and
certain land acquisition had also taken place. Revenue entries in
favour of the concerned respondents have been made long back.
Even revenue entries with regard to acquisition have also been
taken way back in 2009. Revenue entries as contended to have
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come to the knowledge of the petitioners around 2010 and even
then no movement had been made earlier on till written
statement had been filed. In the face of such situation, although
it may be considered that amendment applications are to be
viewed liberally, in the gross facts of this case, it is difficult for
this court to accede to the request being made by learned
advocate for the petitioners and having regard to that the
discretion exercised by the trial court does not appear to be
liable to be faulted with at this stage.
7. The writ petition, as such, is dismissed. Rule stands
discharged. It is, however, made clear that the order has efficacy
only for rejection of the writ petition. It would not preclude
petitioners to question the impugned order in proper proceedings
having regard to section 105 of the Civil Procedure Code.
8. Having regard to that the suit is pending since 1994, the
same be proceeded with as expeditiously as possible and be
disposed of at the earliest.
[SUNIL P. DESHMUKH, J.]
drp/wp10719-12
