Bombay High Court
Shivram Narayan Gatkul And Others vs Vrundavani Goutam Khaire And ... on 22 March, 2016
Bench: R.V. Ghuge
WP 2000/13
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2000 OF 2013
1 Shivaram S/o Narayan Gatkul,
Age-53 years, Occu. Agriculture,
2 Ashok S/o Shivram Gatkul,
Age-21 years, Occu. Agriculture,
ig 3 Rupesh S/o Shivram Gatkul,
Age-18 years, Occu. Agriculture,
4 Surekha W/o Shivram Gatkul,
Age-48 years, Occu. Household and
Agriculture.
All R/o Khanapur, Tal - Paranda,
Dist. Osmanabad.
...Petitioners...
Versus
1 Sou. Vrundavani W/o Goutam Khaire,
Age-40 years, Occu. Household and
Agriculture, R/o Pachapimpla,
Tal - Paranda, Dist. Osmanabad.
2 Sou. Siminta W/o Kundalik
Choudhari, Age-48 years,
Occu. Household and Agriculture,
R/o Vadaner, Tal - Paranda,
Dist. Osmanabad.
3 Baburao S/o Narayan Gatkul,
Age-43 years, Occu. Agriculture,
R/o Khanapur, Tal - Paranda,
Dist. Osmanabad.
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4 Smt. Parubai W/o Narayan Gatkul,
Age -73 years, Occu. Agriculture,
R/o Khanapur, Tal - Paranda,
Dist. Osmanabad.
5 Smt. Mangal W/o Baliram Gatkul,
Age-53 years, Occu. Agriculture,
R/o Bhonja, Tal - Paranda,
Dist. Osmanabad.
6 Sou. Ulka W/o Dasharath
Suryawanshi, Age-35 years,
Occu. Agriculture,
R/o Bangalwadi, Tal - Paranda,
ig Dist. Osmanabad.
7 Sou. Chitra W/o. Mahadeo Iname,
Age-28 years, Occu. Household,
R/o. Khanapur, Tal - Paranda,
Dist. Osmanabad.
8 Kumar S/o Baliram Gatkul,
Age-23 years, Occu. Agriculture,
R/o Bhonja, Tal - Paranda,
Dist. Osmanabad.
9 Nikhil S/o. Baliram Gatkul,
Age-22 years, Occu. Agriculture,
R/o Bhonja, Tao - Paranda,
Dist. Osmanabad.
10 Pandurang S/o Govardhan Thite,
Age-48 years, Occu. Agriculture,
R/o Khangapur, Tal - Paranda,
Dist. Osmanabad.
11 Sudharm S/o. Dattatraya
Bhagyawant, Age-38 years,
Occu. Agriculture, R/o Khanapur,
Tal - Paranda, Dist. Osmanabad.
12 Prashant S/o Ramchandra Narsale,
Age 43 yrs.,Occu.Agri.R/o Domgaon
Tal - Paranda, Dist. Osmanabad.
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13
Siddeshwar S/o Abhiman Kokate,
Age-33 years, Occu. Agriculture,
R/o Kumbhephal, Tal - Paranda,
Dist. Osmanabad.
...Respondents...
.....
Shri A.R. Devkate, Advocate for petitioners.
Shri A.S. More, Advocate for respondent nos.1 & 2.
.....
CORAM: RAVINDRA V. GHUGE, J.
ig DATE: 22.03.2016
ORAL JUDGMENT :
1] Rule. Rule made returnable forthwith and heard
finally by the consent of the parties.
2] The petitioner no.1 is original defendant no.1
whereas the petitioner nos.2 to 4 are original defendant
nos.9 to 11. The Regular Civil Suit No.155/2009 is filed
by respondent nos.1 and 2, who are plaintiffs, in the
Court of Civil Judge, Junior Division, Paranda, for
declaration of ownership, partition and separate
possession of their ancestral and joint family
properties.
3] The petitioners are aggrieved by the order dated
18.2.2013 delivered by the trial Court by which
application (Exhibit 110) in Regular Civil Suit
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No.155/2009 seeking amendment to the plaint under Order
VI Rule 17 has been allowed. While issuing notice, this
Court has stayed the suit by order dated 13.3.2013 and
since then the suit has not progressed.
4] Shri Devkate, learned Advocate for the
petitioners, has strenuously criticized the impugned
order. His submissions can be summarized as follows:-
a] The suit preferred by the original
plaintiffs is for partition and separate
possession with regard to three block numbers.
b] The plaintiffs and the defendants are close
relatives.
c] Written statement was filed by the
petitioners on 6.9.2012.
d] In paragraph no.12 of the written
statement, it has been specifically averred that
since all the properties have not been included
in the suit for partition and separate
possession and as such do not find place in the
common hotch-pot, the suit be dismissed for the
failure on the part of the plaintiffs to include
all the properties.
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e] Issues were cast on 8.12.2010 and isue
no.7, based on the pleadings of the defendants,
has been framed to the extent as to whether the
suit is bad for not bringing all the properties
in the common hotch-pot.
f] The plaintiffs stepped into the witness box
and the cross-examination commenced on
13.12.2012.
g] A specific question was posed with regard
to a property, which was not included in the
suit.
h] The plaintiffs sought an adjournment for
further cross-examination and within 20 days
moved an application (Exh.110) on 8.1.2013
praying for leave to amend the plaint under
Order VI Rule 17 of the Code of Civil Procedure.
i] By the proposed amendment, the plaintiffs
desired to add parties, add properties,
challenge a decree passed in RCS No.199/2006,
correct the mistakes in the names of the parties
etc.
j] By challenging the saledeeds and the decree
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as being not binding on the parties, the nature
of the suit is sought to be altered.
k] There is no pleading with regard to due
diligence in respect of making the application
for amendment in the light of the Proviso to
Rule 17 under Order VI.
l] Commencement of the trial prohibits an
amendment.
m] The plaintiffs were required to file a
separate suit for challenging the decree and the
saledeeds, which would be barred by limitation
and hence to overcome the limitation, an
amendment is proposed.
n] Impugned order be quashed and set aside.
5] Shri More, learned Advocate appearing on behalf
of respondent nos.1 & 2 - plaintiffs, submits that though
the petitioners had raised an issue of maintainability of
the suit in paragraph no.12 of the written statement, the
petitioners did not realize the seriousness in the
objections until the question was posed on 13.12.2012.
It was then that the plaintiffs realized that their suit
would get dismissed purely on the ground of non-addition
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of properties and non-addition of parties.
6] He further submits that subsequently the
plaintiffs gathered knowledge as regards the decree in
Regular Civil Suit No.199/2006. They also gathered
knowledge as regards the partition-deeds in favour of the
petitioners, which were likely to jeopardize the rights
of the plaintiffs as well as the issues raised in the
suit.
7] The plaintiffs, therefore, thought it fit and
proper to amend the plaint before it became too late and
to avoid multiplicity of litigation. In the event any
issue of the bar of limitation arises post amendment, the
plaintiffs are willing to face the situation and the
trial Court may be directed to frame an issue to that
extent.
8] It is submitted that by the proposed amendment
from paragraph no.1A onwards, certain mistakes in the
names were sought to be corrected. Addition of parties
and addition of properties was sought and a decree was
sought to be challenged since the said decree came to the
knowledge of the plaintiffs subsequently.
9] Shri More, however, submits that the issue as
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regards due diligence was not appropriately pleaded in
the application. The pleadings are drafted at a Mofussil
place and hence should be liberally construed.
10] I have considered the submissions of the learned
Advocates as have been recorded hereinabove.
11] It is trite law that if all the properties are
not included in the common hotch-pot in a suit for
partition and separate possession, the said suit would
get dismissed purely on such failure. It is also trite
law that it is in the interest of all the litigating
sides, who are naturally close relatives in a suit for
partition and separate possession, to have all the
properties included in the suit for proper adjudication.
So also, the issue as to whether the properties
subsequently purchased are from the common earnings
generated from the ancestral properties or as to whether
they are self-acquired properties, will have to be dealt
with in such a suit.
12] The trial Court while passing the impugned order
has considered the fact that the rejection of the
amendment application would give rise to the filing of a
fresh suit between the parties and which is likely to
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create multiplicity of litigation. The trial Court in
its wisdom felt that if all these issues are taken up in
the suit for partition and separate possession, all the
litigating sides would be able to participate in the said
litigation and support their own cause.
13] I, however, find that the issue with regard to
the partition-deeds could suffer by the bar of
limitation. Same has not been considered by the trial
Court, which is likely to prejudice the valuable rights
of the petitioners. The said issue of limitation
deserves to be kept open and the trial Court is,
therefore, required to consider the said issue lest it
would amount to the plaintiffs overcoming the issue of
limitation by amending their plaint. Considering the
above, a slight modification in the impugned order so as
to include the issue of limitation with regard to the
challenge to the decree in RCS No.199/2006 and the
partition-deeds, to be decided by the trial Court, will
meet the ends of justice.
14] I have considered the law on amendment in a
judgment delivered by this Court in the matter of Sanjay
Suganchand Kasliwal v. Jugalkishor Chaganlal Tapadia
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(2015 (3) Mh.L.J., 121) as follows:-
"33. In the 2010 Apex Court Judgment in case of
Hindustan Construction Company (supra),
paragraph Nos. 16 to 21 are of assistance and as
such, I find it necessary to reproduce the said
paragraphs herein below:-
"16. Pleadings and particulars are required
to enable the court to decide true rights
of the parties in trial. Amendment in the
pleadings is a matter of procedure. Grant
or refusal thereof is in the discretion of
the court. But like any other discretion,
such discretion has to be exercised
consistent with settled legal principles.
In Ganesh Trading Co. v. Moji Ram, this
Court stated : (SCC p.93, para 2)
"2. Procedural law is intended to
facilitate and not to obstruct the
course of substantive justice.
Provisions relating to pleading in
civil cases are meant to give to each
side intimation of the case of the
other so that it may be met, to
enable Courts to determine what is
really at issue between parties, and
to prevent deviations from the course
which litigation on particular causes
of action must take."
17. Insofar as Code of Civil Procedure,
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1908 (for short `CPC') is concerned, Order
VI Rule 17 provides for amendment of
pleadings. It says that the Court may at
any stage of the proceedings allow either
party to alter or amend his pleadings in
such manner and on such terms as may be
just, and all such amendments shall be made
as may be necessary for the purpose of
determining the real questions in
controversy between the parties.
18. The matters relating to amendment of
pleadings have come up for consideration
before courts from time to time. As far
back as in 1884 in Clarapede & Company v.
Commercial Union Association11 - an appeal
that came up before Court of Appeal, Brett
M.R. Stated :
".....The rule of conduct of the
court in such a case is that, however
negligent or careless may have been
the first omission, and, however late
the proposed amendment, the amendment
should be allowed if it can be made
without injustice to the other side.
There is no injustice if the other
side can be compensated by costs;
but, if the amendment will put them
into such a position that they must
be injured, it ought not to be
made....."
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19. In Charan Das and Others v. Amir Khan
and Others, Privy Council exposited the
legal position that 11 Vol XXXII The Weekly
Reporter 262 12 (1920) LR 47 IA 255 1
although power of a Court to amend the
plaint in a suit should not as a rule be
exercised where the effect is to take away
from the defendant a legal right which has
accrued to him by lapse of time, yet there
are cases in which that consideration is
outweighed by the special circumstances of
the case.
20. A four-Judge Bench of this Court in
L.J. Leach and Company Ltd., v. Jardine
Skinner and Co. while dealing with the
prayer for amendment of the plaint made
before this Court whereby plaintiff sought
to raise, in the alternative, a claim for
damages for breach of contract for non-
delivery of the goods relied upon the
decision of Privy Council in Charan Das &
Others 12; granted leave at that stage and
held :
"16. It is no doubt true that courts
would, as a rule, decline to allow
amendments, if a fresh suit on the
amended claim would be barred by
limitation on the date of the
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application. But that is a factor to
be taken into account in exercise of
the discretion as to whether amendment
should be ordered, and does not affect
the power of the court to order it, if
that is required in the interests of
justice."
"36. The Apex Court in Rajeshkumar Aggrawal
case (supra) has observed in paragraph Nos.
18 and 19 as follows:-
"17. In our view, since the cause of
action arose during the pendency of
the suit, proposed amendment ought to
have been granted because the basic
structure of the suit has not changed
and that there was merely change in
the nature of relief claimed. We fail
to understand if it is permissible for
the appellants to file an independent
suit, why the same relief which could
be prayed for in t he new suit cannot
be permitted to be incorporated in the
pending suit.
18. As discussed above, the real
controversy test is the basic or
cardinal test and it is the primary
duty of the court to decide whether
such an amendment is necessary to
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decide the real dispute between the
parties. If it is, the amendment will
be allowed; if it is not, the
amendment will be refused. On the
contrary, the learned judges of the
High Court without deciding whether
such an amendment is necessary have
expressed certain opinions and entered
into a discussion on merits of the
ig amendment. In cases like this, the
court should also take notice of
subsequent events in order to shorten
the litigation, to preserve and
safeguard the rights f both parties
and to sub serve the ends of justice.
It is settled by a catena of decisions
of this Court that the rule of
amendment is essentially a rule of
justice, equity and good conscience
and the power of amendment should be
exercised in the larger interest of
doing full and complete justice to the
parties before the court."
"49. In Revajeetu Builders & Developers'
case (supra), the Apex Court, while
dealing with the case of amendment has
considered the law almost from 1884
onwards. Paragraph Nos. 27 to 47 read as
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under:-
"33. The general principle is that
courts at any stage of the proceedings
may allow either party to alter or
amend the pleadings in such manner and
on such terms as may be just and all
those amendments must be allowed which
are imperative for determining the
ig real question in controversy between
the parties. The basic principles of
grant or refusal of amendment
articulated almost 125 years ago are
still considered to be correct
statement of law and our courts have
been following the basic principles
laid down in those cases.
34. In the leading English case of
Cropper v. Smith6, the object
underlying amendment of pleadings has
been laid down by Browen, L.J. in the
following words:
"It is a well established
principle that the object of the
courts is to decide the rights of
the parties and not punish them
for mistakes they make in the
conduct in their cases by
deciding otherwise than in
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accordance with their rights ...
I know of no kind of error or
mistake which, if not fraudulent
or intended to overreach, the
court ought not to correct if it
can be done without injustice to
the other party. Courts do not
exist for the sake of discipline
but for the sake of deciding
ig matters in controversy, and I do
not regard such amendment as a
matter of favour or grace ... it
seems to me that as soon as it
appears that the way in which a
party has framed his case will
not lead to a decision of the
real matter in controversy, it is
as much a matter of right on his
part to have it corrected if it
can be done without injustice, as
anything else in the case is a
matter of right."
35. In Tildersley v. Harper7 which was
decided by the English Court even
earlier than the Cropper's case
(supra), in an action against a lessee
for setting aside a lease, in the
statement of claim it was alleged that
the power of attorney of donee had
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received specified sum as a bribe. In
the statement of defence, each
circumstance was denied but there was
no general denial of a bribe having
been 6 (1884) 29 Ch D 700 7 (1878) 10
Ch. D 393 given. A prayer for amendment
of the defence statement was refused.
36. The Court of Appeal held that the
ig amendment ought to have been allowed.
Bramwell, L.J. made the following
pertinent observations:
"I have had much to do in
Chambers with applications for
leave to amend, and I may perhaps
be allowed to say that this
humble branch of learning is very
familiar to me. My practice has
always been to give leave to
amend unless I have been
satisfied that the party applying
was acting mala fide, or that, by
his blunder he had done some
injury to his opponent which
could not be compensated for by
costs or otherwise." (Emphasis
added)
38. The rule, however, is not a
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universal one and under certain
circumstances, such an amendment may be
allowed by the court notwithstanding the
law of limitation. The fact that the
claim is barred by law of limitation is
but one of 8 (1880) 19 QBD 394: 56 LJ
QB 621 the factors to be taken into
account by the court in exercising the
discretion as to whether the amendment
ig should be allowed or refused, but it
does not affect the power of the court
if the amendment is required in the
interests of justice.
42. In a concurring judgment ((1909)
33 Bom 644), Beaman, J. observed:
"The practice is to allow all
amendments, whether introducing
fresh claims or not, so long as
they do not put the other party
at a disadvantage for which he
cannot be compensated by costs."
His Lordship proceeded to state:
"In my opinion two simple tests,
and two only, need to be applied,
in order to ascertain whether a
given case is within the
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principle. First, could the party
asking to amend obtain the same
quantity of relief without the
amendment? If not, then it
follows necessarily that the
proposed amendment places the
other party at a disadvantage, it
allows his opponent to obtain
more from him than he would have
ig been able to obtain but for the
amendment. Second, in those
circumstances, can the party thus
placed at a disadvantage be
compensated for it by costs? If
not, then the amendment ought
not, unless the case is so
peculiar as to be taken out of
the scope of the rule, to be
allowed."
15] So also considering the introduction of the
Proviso below Rule 17 under Order VI of the Code of Civil
Procedure, the plaintiffs will have to compensate the
petitioners by payment of costs.
16] In the light of the above, this petition is
partly allowed. The impugned order dated 18.2.2013 is
modified by directing the trial Court to frame an issue
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of limitation after the amendment is carried out with
regard to the challenge to the decree in Regular Civil
Suit No.199/2006 and the partition-deeds.
17] The plaintiffs shall carry out the amendment
within three weeks. The petitioners shall be at liberty
to file an additional written statement within three
weeks thereafter. The plaintiffs shall deposit an amount
of Rs.15,000/- as costs before the trial Court, which
shall be withdrawn by the petitioners in equal
proportions without any conditions.
18] After the amendment and the written statement
having been filed by these petitioners, the trial Court
shall frame an additional issue, in the light of the
amendment and the pleadings of the parties, with regard
to limitation considering the objections of the
petitioners. Needless to state, the suit shall be
decided on its own merits.
19] Rule is made partly absolute in the above terms.
20] At this stage, learned Advocate for the
petitioners - defendants prays that this judgment be
stayed for a period of six weeks. The learned Advocate
for the respondent nos.1 & 2 - plaintiffs vehemently
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opposes the said request.
21] Considering the fact that this Court had stayed
the suit by its order passed on 13.3.2013 and since then
the said suit has been stayed till this date, operation
of this judgment shall stand stayed for a period of four
weeks from today.
ig (RAVINDRA V. GHUGE, J.)
ndk/c2231615.doc
