Tulsiram Babu Chame vs Vandanabai Bhagwat Chawre
2017 Latest Caselaw 9527 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD


                       WRIT PETITION NO. 1789 OF 2014

Tulsiram S/o. Babu Chame,
Age : 80 years, Occu.: Agriculture,
R/o. Anandwadi (Gaur), Tq. Nilanga,
District Latur                                        .. Petitioner
                                                     (Orig. Defendant)
      Versus

Vandanabai W/o. Bhagwat Chawre,
Age : 45 years, Occu.: Household and
Agriculture, R/o. Anandwadi (Gaur),
Tq. Nilanga, Distrit Latur                            .. Respondent
                                                     (Orig. Plaintiff)

                                  ...
Mr. S.G. Chapalgaonkar, Advocate for petitioner
Mr. S.S. Kulkarni, Advocate for respondent
                                  ...

                                    CORAM : SUNIL P. DESHMUKH, J.

DATE : 12-12-2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard learned

counsel for the parties finally.

2. The petitioner is before this court aggrieved by order

dated 07-11-2013 passed on Exhibit-56 in regular civil suit no. 297

of 2008, whereunder application for amendment Exhibit-56 filed on

behalf of the respondent-plaintiff, has been allowed by 2 nd joint civil

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judge, junior division, Nilanga.

3. Learned counsel for petitioner Mr. Chapalgaonkar, with

quite some vehemence contends, allowing of Exhibit-56 has been

absolutely erroneous, for, in the first place, the same has been

granted after commencement of trial, secondly, the nature of

amendment causes prejudice to the case developed by petitioner-

defendant and looking at the restraint on power under proviso to

order VI, rule 17 of code of civil procedure, the order is

unsustainable.

4. He submits that plaintiff has been in the court seeking

recovery of possession of 78 Are land alleging encroachment by the

petitioner. The suit has been instituted in 2008. Around 2010, the

plaintiff herself had dealt with substantial portion of the disputed

property and sold the same to a third person. Since 2010 to 2013,

she had not referred to this development in the matter at all. While

the plaintiff was being cross-examined and admission in respect of

this development had been elicited, application has been moved for

amendment at Exhibit-56. He submits that the nature of

amendment is such that it not only purports to prejudice case

developed by petitioner, but it also aims at defeating the

development in the matter.

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5.             He      further    contends     that    object       underlying         the

application is unlikely to be satisfied since the person to whom the

property is sold, is not made a party to the suit. He submits that

with such a deficient approach, it is clearly emerging, the object

underlying the application for amendment, is only to prejudice the

case developed by the petitioner, which in the facts and

circumstances of the case, is unsustainable.

6. In support of his aforesaid submissions, he purports to

place reliance on a decision of the supreme court in the case of

Rajkumar Gurawara (Dead) Thr. L.Rs. V. M/s. S.K. Sarwagi and Co. Pvt. Ltd. and anr.

reported in AIR 2008 S.C. 2308 and puts emphasis on head note (B)

thereof and quoted portion under paragraph no. 5. He submits that

aforesaid decision clarifies the position while pre-trial amendments

are to be allowed liberally, yet, the ones which are sought after

commencement of trial are to be examined on the touchstone of

prejudice being caused to the other side. He submits that in the

present matter, the trial court has not done such an exercise and has

made plain and simple observation, going rather too liberal.

He, therefore, urges having regard to aforesaid, to allow the writ

petition, setting aside the impugned order.

7. Mr. Suvidh Kulkarni, learned counsel, on the other hand,

appearing for the respondent - plaintiff submits that the impugned

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order can seldom be faulted with, for it can hardly be said that the

exercise of discretionary power by trial court had been arbitrary or

capricious. He submits that considerations which perhaps have

weighed with the court, appear to be that plaintiff, a lady, occupied

in household and agriculture work, would seldom have knowledge of

intricacies in prosecution of litigation. He submits that while trial

court has passed the order, such an exercise of power by trial court

is supported by various decisions on amendments passed from time

to time.

8. He submits that the plaintiff was not aware that such an

amendment would be required to be immediately made and there

had been no deliberate intention in not making the amendment soon

after the event while it was realized that the absence of amendment

is likely to be taken advantage of, immediately an application had

been moved and had been granted by the court.

9. Learned counsel Mr. Kulkarni refers to and relies on a

decision of this court rendered in NTPC Ltd. Vs. Reliance Industries Ltd.

reported in 2009(4) Bom. C.R. 164. He submits that the factual scenario

in the same comes quite close in respect of the stages of suit as

involved in the present matter, for, trial may be for the sake of

record, it can be said to have just commenced, yet, it would not be a

case that the trial in real sense can be said to have commenced

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since only affidavit of examination-in-chief of the plaintiff had been

filed and her cross-examination has just started and it was realized

that amendment may subserve the cause of justice, looking at the

nature of litigation, Exhibit-56 as such was moved. He particularly

refers to and relies on paragraphs no. 23, 24 of the judgment and

the principles which undergo while considering the application for

amendment as referred to in paragraphs no. 14 and 15 thereof. To

avoid length of this order, said paragraphs are avoided to be

reproduced here.

10. Learned counsel further places reliance on a decision in

the case of Dela Gurudal Vanjari Vs. Uddhal Govardhan Rathod reported in

2012(3) Bom. C.R. 103 of this court (Aurangabad bench), wherein as

well, it has been considered that the court has powers and

unfettered discretion while considering the application for

amendment. An amendment may not be refused only on the ground

that it is belated. While amendment is considered, would be proper

for deciding the real controversy between parties, it can be

allowed on payment of costs.

11. Mr. Kulkarni further puts emphasis on a decision of

supreme court in the case of Abdul Rehman and anr. V. Mohd. Ruldu and ors.

reported in 2012 DGLS (SC) 510 : 2012 AIR (SCW) 5419, pointing out

paragraphs no. 14 and 15 therefrom, holding that if granting of

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amendment really subserves the ultimate cause of justice and avoids

further litigation, the same should be allowed. Change in the nature

of relief claimed may not necessarily change nature of suit and shall

not be considered as such and that power to grant amendment

should be exercised in the larger interest of doing full and complete

justice between the parties.

12. In the present case, the plaintiff is a lady, who has come

for recovery of possession of 75 Are land from her land-holding

alleging encroachment by the defendant-petitioner. She purports to

contend that the document executed during 2010 does not depict

the real nature of transaction and is only an ostensible matter. It

appears that while this transaction was being tried to be made use

of disadvantage of petitioner, eliciting certain information from the

plaintiff in the cross-examination, it had been felt necessary that an

amendment in order to depict real nature of the transaction would

be proper. It would not be a case that defendant would be declined

to carry out consequent amendments to his defence.

13. Amendments generally are liberally considered and

granted in discretionary powers of the court and while trial court has

exercised discretion in favour of the plaintiff, having regard to the

position of law, as would be emerging from the citations relied on, I

do not consider that this is a case wherein exercise of powers by this

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court is called for. As observed in one of the judgments, belated

approach and inconvenience caused to the other side can be mended

with, by imposing costs. While impugned order imposes certain

costs, it would be expedient that the costs are enhanced to

Rs.2500/-, looking at the facts and circumstances of the matter.

14. As such, respondent would be required to pay a further

sum of Rs.2000/- towards costs to the petitioner for amendment

pursuant to Exhibit-56.

15. With aforesaid observations, the writ petition is disposed

of. Interim relief is vacated.

16. Rule stands discharged.

[SUNIL P. DESHMUKH] JUDGE

arp/