Bombay High Court
Sau. Shobha Wd/O Babulal Banmare ... vs Sau. Uma Sanjay Maddamwar And ... on 7 December, 2017
Bench: Z.A. Haq
Judgment 1 wp2371.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2371 OF 2017
1. Sau. Shobha Wd/o. Babulal Banmare,
Aged about 61 years, Occupation: Household,
2. Ku. Archana D/o. Babulal Banmare,
Aged about 37 years, Occ. : Student,
3. Mr. Sachin S/o. Babulal Banmare,
Aged about 34 years, Occ. : Service,
4. Ku. Smita D/o. Babulal Banmare,
Aged about 32 years, Occ. : Student,
5. Vinay S/o. Babulal Banmare,
Aged about 29 years, Occ. : Student,
Nos. 1 to 5 are residents of Ram Nagar
Ward, Hinganghat, Tah. Hinganghat,
Dist. Wardha.
6. Sau. Damayanti Vitthalrao Lokhande,
Aged about 68 years, Occ. : Household,
7. Mr Abhay Vitthalrao Lokhande,
Aged about 39 years, Occ. : Business,
8. Smt. Irawati Kashinath Nagrale,
Age about 64 years, Occ. : Household,
Nos. 6 to 8 are resided at S-01, Sumesh
Apartment, Near BSNL Tower, Narendra
Nagar, Nagpur.
.... PETITIONERS.
// VERSUS //
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Judgment 2 wp2371.17.odt
1. Sau. Uma Sanjay Maddamwar,
Aged about 52 years, Occ.: Business,
Resident of Central Ward, Hinganghat,
Tah. Hinganghat, Dist. Wardha.
2. Sau. Namrata Ramesh Londhe,
Aged about 48 years, Occ.: Business,
Resident of Mahatma Fule Ward,
Hinganghat, Tah. Hinganghat,
Distt. Wardha.
3. Sau. Kirti Surendra Borkar,
Aged about 48 years, Occ.: Business,
Resident of Central Ward,
Hinganghat, Tah. Hinganghat,
Distt. Wardha.
4. Mr Narendra Mahadeorao Hadke,
Aged about 42 years, Occ.: Business,
Resident of Bhim Nagar Ward,
Hinganghat, Tah. Hinganghat,
Distt. Wardha.
.... RESPONDENTS
.
___________________________________________________________________
Shri A.V.Lokhande, Advocate for Petitioners.
Shri A.A.Naik, Advocate for Respondent Nos.1 to 4.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : DECEMBER 07, 2017.
ORAL JUDGMENT :
1. Heard.
2. RULE. Rule made returnable forthwith.
Judgment 3 wp2371.17.odt
3. The petitioners/original defendants have challenged the order
passed by the trial Court by which application (Exh.134) filed by the
respondents/plaintiffs seeking permission to amend the plaint is allowed.
4. The plaintiffs have filed civil suit praying for decree for specific
performance of Agreement of Sale and for other reliefs. The trial progressed,
issues came to be framed and evidence of the plaintiffs is recorded. The
plaintiffs filed pursis informing the Court that they do not want to examine
any further witness. At this stage, the plaintiffs filed application (Exh.134)
seeking permission to amend the plaint to incorporate challenge to the
alleged cancellation of Agreement of Sale as pleaded by the defendants. This
application is allowed by the impugned order.
5. According to the plaintiffs, after the defendants filed written
statement on 10th June, 2009, issues came to be framed on 14th June, 2010,
no issue was framed on the point as to whether the plaintiff is entitled for
decree for specific performance without challenging the cancellation of
Agreement of Sale, that the defendants applied for framing of additional
issue on 3rd January, 2011, additional issues were framed on 27 th September,
2013, then again issues were recast on 5 th July, 2014 and then again issues
were recast on 20th March, 2015 and the issue about entitlement of the
plaintiffs for decree for specific performance of Agreement of Sale without
challenging the cancellation of the Agreement of Sale came to be framed.
Judgment 4 wp2371.17.odt
According to the plaintiffs, after this issue came to be framed on 20 th March,
2015, the defendants filed an application praying that the additional issue
No.1-b be tried as preliminary issue, which reads:
"Plaintiffs having not sought decree for declaration that
cancellation of agreement dated 27/12/2001 was
illegal, whether the part of civil suit praying decree for
specific performance of agreement is maintainable?"
The trial Court granted this request of the defendants and then the plaintiffs
felt it necessary to amend the plaint.
6. Considering the case of the plaintiffs, it cannot be said that the
plaintiffs have been able to overcome the bar created by the proviso below
Rule 17 of Order 6 of the Code of Civil Procedure. The plaintiffs have not
been able to show that inspite of exercise of due diligence they were not able
to bring on record the pleadings which they are seeking to bring on record by
the proposed amendment. The decision of the trial Court to decide the
additional issue No.1-b as preliminary issue cannot give cause of action to
the plaintiffs to amend the plaint to incorporate the challenge to cancellation
of Agreement of Sale. In the written statement filed on 10 th June, 2009 the
defendants pleaded that the Agreement of Sale of which specific performance
is sought was cancelled by the defendants on 24 th March, 2008. If the
plaintiffs intended to counter the defence of the defendants they should have
amended the plaint immediately after filing of the written statement and in
Judgment 5 wp2371.17.odt
any case before the trial commenced. Failure on the part of the plaintiffs to
seek amendment before commencement of the trial and because of the
further failure on their part to show that in spite of due diligence they could
not bring on record the facts earlier, the trial Court could not have
entertained the application and could not have allowed it in view of the
proviso below Rule 17 of Order 6 of the Code of Civil Procedure.
7. In the above facts, I find that the trial Court has exercised
jurisdiction which it could not have exercised because of the bar created by
the proviso below Rule 17 of Order 6 of the Code of Civil Procedure. Hence,
the impugned order is unsustainable.
8. Therefore, the following order:
i) The impugned order is set aside.
ii) The application (Ex.145) filed by the plaintiffs is dismissed.
Rule is made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
RRaut..
