Bombay High Court
Pralhad S/O. Badusingh Sable vs Pruthvisingh Harising Sable And ... on 18 October, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6365 OF 2015
PETITIONER : Pralhad S/o Badusingh Sable
Aged about 65 years, Occu. Agriculturist,
R/o Ramnagar field, Manora Road,
Digras, Dist. Yavatmal.
- VERSUS -
RESPONDENTS : 1] Pruthvisingh Harising Sable,
ig Aged about 36 years, Occu. Agriculturist,
2] Ganusing Badusing Sable,
Aged about 51 years, Occu. Agriculturist
3] Fattesing Pralhad Sable,
Aged about 43 years, Occu. Agriculturist,
4] Sunil Adhyansing Sable,
Aged about 33 years, Occu. Agriculturist,
5] Smt. Ramabai Badusing Sable
Aged about 87 years, Occu. Household (DEAD)
6] Harising Badusing Sable,
Aged about 63 years, Occu. Agriculturist,
7] Adhyansing Badusing Sable,
Aged about 58 years, Occu. Agriculturist
8] Ravindra Harising Sable,
Aged about 34 years, Occu. Agriculturist
9] Jamunabai Harising Sable,
Aged about 59 years, Occu. Household,
10] Mangalabai Sundarsing Padwal,
Aged about 68 years, Occu. Household,
R/o Ujwal Nagar, Tah. Manora,
Dist. Washim.
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11] Rangubai Kisan Manzrete,
Aged about 52 years, Occu. Agriculturist,
R/o Jiwali Tanda, Tah. Umarkhed,
District Yavatmal.
Respondent Nos. 1, 2, 4 & 6 to 9 are resident of
Palodi, Taq. Manora, Dist. Washim
Respondent nos.3 & 5 are resident of Ram nagar,
Digras, Tq. Digras, Dist. Yavatmal.
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Mr. A. M. Kukdey, Advocate for the petitioner.
Mr. R. M. Sharma, Advocate for the respondent no.6.
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CORAM : PRASANNA B. VARALE, J.
DATE : OCTOBER 18, 2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. With the consent of
the learned counsel for the parties, the petition is heard finally at the
stage of admission itself.
2] By the present petition, the petitioner challenges the order
passed by the learned Civil Judge, Junior Division, Digras, dated
17.10.2015 in Regular Civil Suit No. 07/2010, thereby allowing the
application submitted by the respondents seeking amendment in the
written statement.
3] Few facts that would be necessary to summarize the controversy
involved in the present petition, are as under :
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The petitioner/plaintiff herein has instituted Regular Civil Suit
No. 07/2010 against the respondents/defendants before the learned
Civil Judge, Junior Division, Digras. The petitioners and the
respondents are the relatives inter se. The dispute between them is in
respect of an agricultural land. Respondent no.6 herein Harisingh Sable
had filed his written statement on 20.04.2010, which runs in nearabout
30 pages. Apart from the counter claims, it was submitted in the
written statement that respondent no.6 Harisingh Sable (Naikada) had
purchased the agricultural land from his own earnings on 06.03.1997.
It was further submitted that as per the custom prevailing in Naikada
Tribe, the sisters do not have any share in the property. An application
under Order VI Rule 17 of the Code of Civil Procedure seeking
amendment to the written statement was filed at the instance of
respondent nos.1, 6 and 8 through respondent/defendant no.6
Harisingh Sable. It was submitted in the application that the
respondents/defendants have already submitted their written
statement, the issues are framed by the Court and the matter is pending
for cross-examination of the petitioner/ plaintiff. It was further
submitted in the application that the respondents/defendants belong to
Scheduled Tribes, more particularly, 'Naikada' community. It was
further submitted that though, a reference to this effect is already made
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in the written statement, the reference in the written statement being a
brief reference, the applicants/defendants want to place an elaborate
explanation on record and as such the application was filed for raising
preliminary objection in elaborate submission.
4] The application was strongly opposed by the petitioner/
plaintiff. It was submitted that the petitioner/plaintiff though admitted
that he and the defendants are belonging to Naikada community, the
claim of the defendants that they are 'Tribes', is not admitted. It is
further submitted in the reply to the application that the respondents
/defendants failed to place on record any documentary material in
support of their stand that they belong to Scheduled Tribes. It was
submitted in the reply that the status of anyone belonging to Scheduled
Tribe would be a subject matter to be decided by the competent Caste
Scrutiny Committee and such status can be affirmed only after a
certificate is issued by the competent Scrutiny Committee. It was also
submitted in the reply that the application was filed at a belated stage
i.e. after five years of filing the written statement. A strong objection
was raised in respect of claiming status of 'Tribe' by respondent nos.6
and 7 by submitting that there was a contra material in respect of claim
as belonging to Scheduled Tribe as in school documents belonging to
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defendant no.7 the caste is referred to as 'Ma.Banjari', whereas the
relative is shown as Hindu and in respect of respondent no.6, two
contrary certificates are placed on record i.e. one showing respondent
no.6 belong to Banjari and his progeny belonging to 'Naikada'
community. It was submitted that the defendants are not seeking the
elaborate explanation, but the attempt is to change the nature of the
stance and stand taken by the defendants. A pursis was filed before the
trial Court, a copy of which is placed on record at Annexure-5. Perusal
of said pursis show that it was signed by respondent no.8 for himself
and on behalf of respondent/defendant no.1 as Power of Attorney
holder. The pursis was also signed by defendant no.9. The pursis reads
that the application submitted on behalf of respondent/defendant no.6
be treated as an application tendered by defendant nos.8, 1 and 9 as
they not not having any objection to the application seeking
amendment in the written statement and they are in agreement with
the contents of the application. The trial Court, by observing that the
respondents want to add preliminary objection in their written
statement and want to elaborate the customs, which were prevalent in
their case, allowed the application by the imopugned order.
5] Mr. Kukday, the learned counsel for the petitioner
vehemently submitted that the impugned order passed by the trial
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Court is clearly unsustainable on more than one grounds. It was the
submission of the learned counsel for the petitioner that the written
statement was filed on 28.04.2010, whereas the application was
submitted as belatedly as on 07.09.2015 i.e. after five years. He further
submitted that though, it was claimed that the defendants only with a
view to place on record the elaborate submissions are filing the
application, the attempt is nothing but to change the nature of stance
taken in the written statement. The learned counsel for the petitioner
submitted that in the reply filed to the application, the plaintiff had
specifically raised the ground that the defendants failed to place on
record any material in support of the claim that the defendants belong
to the category of Tribes and the status claimed as of 'Naikada' can be
ascertained only after due scrutiny by the competent Scrutiny
Committee. The learned counsel for the petitioner also submitted that
the basic contention raised by the defendants in the written statement
in respect of daughters having no right or share in the property, itself is
denied by the plaintiff. The learned counsel also submitted that in the
reply to the application itself, there was material showing altogether
contrary status of respondent no.6 and the attempt is to take shelter of
stand that the defendants belonging to 'Naikada' community and as
such are outside the scope of provisions of Hindu Succession Act. The
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learned counsel for the petitioner then submitted that respondent no.8
Ravindra though, filed a pursis before the trial Court and submitted that
the application filed by the defendant no.6 be treated as an application
filed by the defendant nos.8, 1 and 9 and supported the contentions of
the respondent no.6, the respondent no.8 had not placed all true facts
before the trial Court, on the contrary, the respondent no.8 indulged in
the act of suppressing material facts from the trial Court. The learned
counsel submitted that the status of respondent no.6 of belonging to
'Naikada' Scheduled Tribe community was turned down by a reasoned
order passed by the competent Scrutiny Committee, much prior to the
submission of written statement and an application seeking
amendment. The order of the Scrutiny Committee passed in respect of
respondent no.8 Ravindra is of 17.11.1997. A copy of the said order is
placed on record, which is taken on record and marked as "X" for
identification. The learned counsel for the petitioner submitted that the
applicant/respondent no.6 is also conveniently silent on the aspect of
delay as the written statement was filed in the year 2010, whereas the
application was filed in the year 2015 and absolutely no explanation is
submitted in the application for the delay of five years. Thus, the
learned counsel for the petitioner submitted that the trial Court,
without considering all the material and objections raised by the
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petitioner in the form of their reply to the application seeking
amendment, passed the impugned order. Mr. Kukde, the learned
counsel placed heavy reliance on the judgment of the Hon'ble Apex
Court reported in 2008 DGLS (SC) 1646 in the case of Vidyabai and
others .vs. Padmalatha and another ; and the judgment of this Court
reported in 2009 (5) Bom.C.R. 311 in the case of Chhabubai Haribhau
Badakh .vs. S.H. Khaatod and Sons and another.
6] Per contra, Mr. Sharma, the learned counsel for the
respondent no.6 vehemently submitted that no error is committed by
the learned trial Court in allowing the application. The learned counsel
submitted that the defendants have already took stand in the written
statement of they belonging to Naikada Tribe community and in
Naikada Tribe community, the sisters are having no share in the
property. It was submitted that the application was only for an
elaborate explanation of the stand, which was already taken. He
further submitted that in view of the various judgments of this Court
and the Hon'ble Apex Court, the application seeking amendment can be
filed at any stage, provided the Court considers these applications on its
merits and the applications filed prior to commencement of trial are
liberally granted, whereas certain scrutiny is expected for the
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applications filed after commencement of the trial. It was the
submission of the learned counsel for the respondent no.6 that the
application was filed immediately on the next day when the trial was
commenced. It was his submission that as the application was filed
only with an intention to place on record an elaborate submission and
the respondents/defendants were neither raising any new ground
before the Court nor changing their stand reflected in the written
statement, there was no reason for the respondents/defendants to
submit any explanation for the delay. The learned counsel further
submitted that the respondents, more particularly, respondent no.6
along with the submissions filed in this Court, has placed on record the
Caste Certificate issued in favour of his father by the Executive
Magistrate, Mangrulpir, dated 17.06.1981, the caste certificate issued in
favour of the petitioner Pralhad Sable, dated 23.12.1992 and
respondent no.3 - Fattesingh S/o Pralhad Sable, dated 20.12.1990,
issued by the Executive Magistrate, Digras. Mr. Sharma, the learned
counsel vehemently submitted that the trial Court is not expected to
have a scrutiny of the caste status of the parties and the course open for
the trial Court was to consider the application on its merits. An attempt
was also made by the learned counsel to submit that the
petitioner/plaintiff himself had admitted the status of the respondents
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belonging to 'Naikada' community and as such, there was no reason for
the trial Court to consider this aspect of the matter. The learned
counsel submitted that as the respondents approached the trial Court
for placing on record the elaborate submissions, the trial Court rightly
considered the object and intent of the application and allowed the
same. Mr. Sharma, the learned counsel in support of his submissions
placed reliance on the following reported judgments :
1] (2002) 7 Supreme Court Cases 559
Sampath Kukmar .vs. Ayyakannyu and another.
2] (2007) 6 Supreme Court Cases 167
Andhra Bank .vs. ABN Amro Bank N.V. And others.
3] 2014 (5) Mh.L.J. 849
Dinesh G. Chhabra .vs. Kishore Ghanmare
4] (2012) 2 Supreme Court Cases 300
J. Samuel and others .vs. Gattu Mahesh and others
7] The learned counsel for respondent no.6 by referring to the
judgment in Dinesh G. Chhabra .vs. Koshor Ghanmare's case cited supra,
submitted that the facts in the reported case and the case at hand are of
similar nature namely, when the amendment was not sought for by
raising new grounds, though the application was submitted at a belated
stage i.e. after framing of the issues, allowing such an application was
proper.
8] As the necessary facts are already referred to above in
detail, it would not be necessary to refer to those facts again.
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Considering the peculiar facts and the material placed on record, I find
considerable merit in the submissions of the learned counsel for the
petitioner. Though, at the first blush the submissions of learned counsel
for the respondent no.6 looks attractive, on scrutiny and assessment of
the material placed on record, I am unable to accept the submission of
the learned counsel for the respondent. It was the attempt to submit
before this Court that the application for amendment was nothing but
an attempt to submit elaborate explanation of the stand taken in the
written statement. On this backdrop, if the written statement is
perused, the stand taken in the written statement, more particularly in
reply to paragraph 9, reads that as per aadiwasi customs, sisters are not
entitled for any share. In the written statement, which runs in 30 pages,
it is nowhere submitted that the respondents were belonging to
'Naikada' Tribe category. A sweeping reference is made in paragraph 8
that respondent no.6 Harisingh Sable Naikada purchased the land from
Smt.Kaushalya Yadav on 06.03.1997. The submission that the
plaintiff/petitioner himself admitted the stand of the respondents also
cannot be accepted on the backdrop of the reply. The petitioner
/plaintiff had specifically denied the claim of the respondents that they
are from Tribe community. In the reply, also the stand was taken that
there is no custom prevailing in 'Naikada' community to grant share to
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the sisters in the property. The reply also refers to a contra material in
respect of status of respondent nos.6 and 7. It would be very interesting
to note that the respondent no. 8 herein had submitted a pursis on his
behalf and on behalf of respondent nos.1 and 9 accepting the claim of
respondent/defendant no.6.
9] As referred to above, the social status of respondent no.8
Ravindra, who is the son of respondent no.6, was the subject matter
before the Caste Scrutiny Committee. The Scrutiny Committee in its
detailed order, passed on 17.11.1997, came to the conclusion that
Ravindra Sable does not belong to 'Naikada' Scheduled Tribe and
accordingly, the caste certificate issued in favour of respondent no.8
Ravindra by the Executive Magistrate was cancelled. As this decision
was of year 1997, it cannot be accepted that respondent no.8 Ravindra,
in whose caste claim the decision was given by the competent Caste
Scrutiny Committee, was not aware of the said decision till filing of the
written statement by the respondent no.6 or till filing of the pursis by
himself. It is also unpalatable to accept that respondent/defendant
no.6, the father of respondent no.8 Ravindra, was also not aware that
there was a decision of the Scrutiny Committee rejecting the caste/tribe
claim of his own son. Though, there cannot be any dispute on the
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submission of the learned counsel for the respondent no.6 that it was
not for the trial Court to verify the caste/tribe status of the parties and
the trial Court was only to assess the merit of the application. On the
backdrop of the peculiar fact on record that the parties to the
proceedings, more particularly respondent/defendant no.8, is an adult
member whose caste certificate was rejected by the competent Scrutiny
Committee and though, this fact was well within the knowledge of
respondent no.8, he supports the claim of respondent no.6 and makes a
statement that the application submitted by the respondent no.6 be
treated as an application by respondent nos.8, 1 & 9. It does not lie in
the mouth of the party before the competent judicial forum to submit
before the Court and support the stand of respondent/ defendant no.6
when the claim of social status of respondent no.8 was rejected by the
competent Scrutiny Committee. It is the minimum expectation from
the parties, who approach the judicial forum or even to the quasi-
judicial forum, to approach with clean hands and without suppressing
any material, which is well within their knowledge. The trial Court
also failed to consider that in the written statement a stand was taken
that there is custom prevailing in 'Naikada' Tribe and this particular
stand was denied by the petitioner/plaintiff and as such the trial
Court failed to consider the aspect that the application, though
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styled as if it was an application only for elaborate explanation, there
was change in the stand taken in the written statement.
10] As stated above, though Mr. Sharma, the learned counsel
for respondent no.6 placed heavy reliance on the judgment of this Court
in Dinesh Chhabra .vs. Kishore Ghanmare's case, as this Court is of the
opinion that the attempt of the respondents/defendants was not only to
submit elaborate explanation, but it was amounting to change of stand
taken by them before the trial Court, the aforesaid reported judgment
of this Court would not be of any help to the respondents. On the
contrary, the learned counsel for the petitioner was justified in placing
reliance on the judgment of this Court in Chhabubai Badakh .vs. S. H.
Khaatod's case. It would not be out of place to state that in Chhabubai's
case, this Court had also an occasion to consider the judgment of the
Apex Court in Andhra Bank .vs. ABN Amro Bank (supra), on which
reliance was placed by the learned counsel for the respondent no.6.
11] Considering all these peculiar aspects of the matter, in my
opinion, the order passed by the trial Court is unsustainable and the
same needs to be quashed and set aside. In the result, the writ petition
is allowed. The order passed by the learned Civil Judge, Junior
Division, Digras, dated 17.10.2015 in Regular Civil Suit No. 7/2010 is
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quashed and set aside.
Needless to state that the observations made in this
judgment are for deciding the controversy in this writ petition and the
learned trial Court may not be influenced by these observations while
deciding the suit and to decide the suit on its own merits.
ig JUDGE
Diwale
