Bombay High Court
Mohammed Abdul Wahid S/O. Late Dr. ... vs Smt. Nilofer Wd/O. Dr. Mohammad ... on 30 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6562 OF 2015
PETITIONER: Mohammed Abdul Wahid S/o Late
Dr. Mohammed Abdul Aziz, aged 54
years, occ. Business, R/o Behind
Power House, Hansapuri, Nagpur.
-VERSUS-
RESPONDENTS: ig 1. Smt. Niloger Wd/o Dr. Mohammad
Abdul Salim, Aged about 50, Occ.
Household, R/o B-4 Anmol
Apartments, Mecosabagh, Nagpur-
440004.
2. Smt. Suriyya Jabeen wd/o Siddique
Ali Khan Patel, aged about 56 years,
Occ. Household, R/o Dr. Aziz Manzil,
Near Jama Masjid, Mominpura,
Nagpur.
Shri Masood Shareef, Advocate for the petitioner.
Dr. R. S. Sundaram, Advocate for respondent No.1.
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CORAM: A.S. CHANDURKAR, J.
DATED: 30
th JUNE, 2016.
ORAL JUDGMENT :
1. Rule. Heard finally with the consent of the learned
Counsel for the parties.
2. The petitioner is the original plaintiff who has filed suit
for declaration with regard to his share in the suit property with a
further prayer for a preliminary decree of partition, separate
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possession and perpetual injunction.
3. The respondent No.1 herein filed her written
statement opposing the claim as made in the suit. During
pendency of the suit, the plaintiff moved an application under
provisions of Order VI Rule 17 of the Code of Civil Procedure,
1908 (for short, the Code) seeking leave to amend the plaint. By
said amendment, the schedule of the suit property and some
paragraphs after para 13 were sought to be amended. The trial
Court by the order dated 1-4-2015 allowed the said application
and also permitted the defendants to consequentially amending
their pleadings. Pursuant to the aforesaid order, the defendant
No.1 moved an application below Exhibit-139 praying that the
consequential amendment to the written statement be allowed. In
this application besides the reply to the amended plaint, para 37A
was also sought to be amended in the written statement. The trial
Court by order dated 27-7-2015 partly allowed the said
application. It permitted the defendant no.1 to carry out the
consequential amendment to paras 35B, 35C and 35D. The
amendment in the other paras was not granted but liberty was
granted with to move a separate application in that regard. An
application for review filed by the defendant no.1 came to be
rejected.
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4. Thereafter the defendant no.1 moved another
application below Exhibit-149 and sought to add para 37A to the
written statement. The trial Court by order dated 17-10-2015
allowed the said application. In response thereto the plaintiff filed
an application below Exhibit-151 seeking to reply to the averments
made in para 37A of the written statement. The trial Court by the
impugned order dated 26-10-2015 rejected the said application on
the ground that as the plaintiff had amended the plaint and the
defendant had also carried out the consequential amendment,
there could not be any further amendment to the pleadings.
5. Shri Masood Shareef, the learned Counsel for the
petitioner submitted that the trial Court was not justified in
rejecting the application for amendment below Exhibit-151.
According to him, the trial Court while permitting the defendant
no.1 to amend her written statement consequentially had
specifically refused permission to add para 37A in the written
statement on the ground that the pleadings in said paragraph were
not of a consequential nature and had therefore granted liberty to
move a separate application. Pursuant thereto, the application
moved by the defendant no.1 to add aforesaid paragraph was
allowed by the trial Court by passing order below Exhibit-149.
According to him, the plaintiff could not have been denied the
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permission to respond to these averments inasmuch as the
amendment carried out vide para 37A was not consequential in
nature but it was a fresh pleading. He therefore, submitted that
the entire basis on which the amendment was disallowed was
legally unsustainable. In support of his submissions the learned
Counsel placed reliance on the decision of the Hon'ble Supreme
Court in Gurdial Singh and others vs. Raj Kumar Aneja and others
(2002) 2 SCC 445.
ig Dr. R. S. Sundaram, the learned Counsel for the
respondent no.1 supported the impugned order. According to him,
the trial Court was justified in rejecting the application moved by
the petitioner. He submitted that pursuant to the initial
amendment carried out by the plaintiff, the defendant had
amended he pleadings. What was sought to be added thereafter in
para 37A were merely averments in support of the pleadings that
were already on record and that there could not be any denial of
the averments made in the written statement by amending the
plaint. According to him, if such an application is allowed, the
same would amount to permitting further consequential
amendment to the amendment carried out by the defendant in
response to the amended plaint. He referred to the provisions of
Order VI Rule 1, Order VII and Order VIII Rule 2 of the Code in
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support of his submissions. He then submitted that if the plaintiff
intended to rebut the case of the defendant, the same could be
only by way of evidence and not by further amending the plaint.
He relied upon the decision of the Hon'ble Supreme Court in Usha
Balasaheb Swami and others Vs. Kiran Apparao Swami and others
2007(5) Mh.L.J. 593 and the judgment of learned Single Judge in
Narayan Vs. Sumanbai 2012 (1) Mh.l.J. 316.
7. I have heard the respective Counsel for the parties at
length and I have given due consideration to their respective
submissions. It is not in dispute that in response to the amendment
carried out in the plaint, the defendant no.1 was permitted to
consequentially amend her pleadings. On such pleadings being
sought to be amended the trial Court permitted only those
amendments which according to it were consequential in nature.
Specific liberty was granted to the defendant to apply for
amendment in respect to para 37A as proposed as the averments
made therein were not found to be in the nature of a consequential
amendment. It is on the basis of this liberty that the subsequent
application below Exhibit-149 came to be moved by the defendant
no.1. While considering this application, the trial Court while
allowing the same observed that the said amendment was
necessary for deciding the real controversy between the parties
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and that it was permissible for the defendant to take an additional
defence. It is in response to this amendment that the plaintiff
sought to amend her pleadings so as to bring on record her stand
in that regard. The trial Court merely by observing that the said
amendment would amount to consequential amendment of the
plaint rejected the application.
8. In Gurdial Singh and others (supra), the Hon'ble
Supreme Court in para 19 of its judgment has observed thus:
ig "19. When one of the parties has been
permitted to amend his pleading, an opportunity
has to be given to the opposite party to amend
his pleading. The opposite party shall also have
to make an application under Order 6 Rule 17
CPC which, of course, would ordinarily and
liberally be allowed........................................."
It has been further observed that if leave to amend the pleadings
was granted then permission to the other party to consequentially
amend the pleadings is normally granted. It has been observed
that no new plea can be permitted to be added in the garb of a
consequential amendment though it can be applied by way of an
independent amendment. Further reference has been made to
provisions of Order VI Rule 7 of the Code and it has been observed
that no pleading except by way of amendment can raise a new
ground or contain an allegation of fact inconsistent with the
previous pleadings.
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In the present case, the trial Court had specifically
denied the permission to consequentially amend and incorporate
in para 37A to the defendant no.1. On the basis of the liberty
granted by the trial Court, the subsequent application came to be
moved which was thereafter allowed. It was in response to this
amendment that the plaint was sought to be amended.
Considering aforesaid observations of the Hon'ble Supreme Court,
I find that the trial Court was not justified in rejecting the
application below Exhibit-151. The observations made in the
aforesaid decision would apply to amendment of pleadings of
either of the parties and the same cannot be restricted to either the
plaintiff or the defendant.
9. The legal position as laid down in Usha Swami (supra)
does not admit of any doubt. In the present case, the amendment
as sought was in response to amended para 37A and therefore, the
ratio of aforesaid judgment cannot be made applicable in the
present facts. Similarly, the decision in Narayan (supra) also does
not support the submission made on behalf of the respondent
No.1.
10. The reference to various provisions of the Code by the
learned Counsel for the respondent No.1 does not in any manner
bar an amendment of the present nature. The same is only in
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response to the amendment carried out by the defendant no.1. The
trial Court having failed to allow the same acted with material
irregularity and therefore, a case for interference has been made
out.
11. In view of aforesaid, the following order is passed:
(a) The order dated 26-10-2015 passed below Exhibit-151
is set aside.
(b) The application below Exhibit-151 is allowed.
(c)
ig In the facts of the case, the proceedings in Special Civil
Suit No.766 of 2012 are expedited and the trial Court
shall decide the suit by the end of April,2017.
(d) The writ petition is allowed in aforesaid terms. No
costs.
JUDGE
//MULEY//
