Sushilkumar Sudhakar Shete vs Jaysingh Balbhim Deokate Died Lrs ...
2017 Latest Caselaw 4183 Bom

                                       1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                     WRIT PETITION NO. 10951 OF 2016

                  SUSHILKUMAR SUDHAKAR SHETE
                             VERSUS
              JAYSING BALBHIM DEOVKATE AND OTHERS

                    Advocate for Petitioner : Shri K.K. Kulkarni.

                                      CORAM : RAVINDRA V. GHUGE, J.

                                      Dated    : 07th July, 2017

 PER COURT :

1. The petitioner / plaintiff is aggrieved by the order dated

22/06/2016, delivered by the learned Additional Sessions

Judge, Osmanabad, by which, application Exhibit 21, seeking

an amendment, has been rejected in Regular Civil Appeal No.

55/2011.

2. Learned Counsel for the petitioner has strenuously

criticized the impugned order on the ground that when his suit

R.C.S. No. 156/2008, was filed for seeking permanent

injunction, he had pleaded that he is in possession of the suit

property. The claim over the suit property is based on a

registered sale deed which is also on record. As the suit was

dismissed by judgment dated 28/02/2011, he has preferred the

appeal which is pending final adjudication.

3. He submits that the proposed prayer is put forth in the

alternative. It is only to ensure that if the Court comes to a

conclusion that he is not in possession, he will be able to seek

possession by introducing additional paragraphs and by putting

forth a prayer for recovery of possession. He has relied upon

the judgment of Hon'ble Supreme Court Mount Mary Enterprises

Versus Jivratna Medi Treat Private Limited [(2015) 4 SCC 182],

to support his contention that even if the suit is to be transfered

to another Court on account of change in pecuniary jurisdiction,

it would not be a ground to deny the amendment.

4. He has then relied upon Sumer Builders Pvt. Ltd. Versus

Sadhana Textiles Mills Pvt. Ltd. and others. [2015 (1) All M.R.

795], to contend that the dominant purpose of allowing an

amendment is to minimize litigation and it is open to the Court

to disregard the delay and allow the amendment.

5. He has then relief upon Dela Gurudal Vanjari Versus

to contend Uddhal Govardhan Rathod [2012 (3) Mh.L.J. 940],

that an amendment can be allowed as the interest of the

defendants can be safe guarded. An amendment putting forth a

claim for recovery of possession in a suit for injunction would

not change the nature of the suit.

6. In the instant case, the suit preferred by the petitioner

has been dismissed by the judgment which was impugned

before the Appellate Court. The proposed prayers are as under :

"Para No. 4-A

That, in alternative it is submitted that, if this Hon'ble

Court comes to conclusion that, Plaintiff is not in

possession of the suit land, and defendants are in

possession of suit land, then plaintiff submits that, as

plaintiff is being legal owner of suit land, by virtue of

registered sale-deed dt. 17/08/2007, defendants may

kindly be directed to hand over, possession of suit land to

plaintiff, as possession of defendants is not legal, valid.

Para No. 5-A :

That, for the purpose of alternative relief of possession,

present suit is valued at Rs. 1,000/-, and required court

fees of Rs. 200/- is paid.

In pray paras :

c) In alternative decree for possession in respect of suit

land, may kindly be passed against defendants, in favour

of plaintiff, by directing the defendants to hand over

possession of suit land, to plaintiffs."

7. It is obvious from the proposed paragraphs that the

petitioner / plaintiff desires to introduce a prayer in the

alternative so as to enable him to seek possession of the suit

land on the basis of a registered sale deed. The said sale deed

was subject matter of adjudication before the Trial Court.

Evidence was led on the issues cast. One of the issues (ad

verbatim) was "Whether plaintiffs prove that, he is in lawful

possessor of suit field?" The Trial Court on the basis of oral and

documentary evidence has concluded that the plaintiff is not in

lawful possession of the suit field. While arriving at the said

conclusion, the Trial Court has also recorded that after the

temporary injunction was refused concluding that the plaintiff is

not in possession as on the date of institution of the suit, he has

not challenged the order below Exhibit 5. The Trial Court has

come to a conclusion that the defendants were said to be

ploughing the suit field and have resorted to agricultural

activities as per the claim of the plaintiff.

8. It was in the above backdrop, that the Trial Court

concluded that the plaintiff could not establish his legal

possession over the suit land.

9. The Hon'ble Apex Court in Revajeetu Builders &

Developers Versus Narayanaswamy & Sons [(2009) 10 SCC 84]

and in Chakreshwari Construction Private Limited Versus

(2017) 5 SCC 212], has held that while Manohar Lal [

entertaining an application for amendment, the following

aspects need to be considered :

"(1) Whether the amendment sought is imperative for

proper and effective adjudication of the case;

(2) Whether the application for amendment is bona fide

or mala fide;

(3) The amendment should not cause such prejudice to

the other side which cannot be compensated adequately

in terms of money;

(4) Refusing amendment would in fact lead to injustice

or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally

or fundamentally changes the nature and character of the

case; and

(6) As a general rule, the Court should decline

amendments if a fresh suit on the amended claims would

be barred by limitation on the date of application."

10. The issue, therefore, is whether the amendment sought is

necessary for the proper adjudication of the case and whether

the application for amendment was filed bona fide.

11. The suit before the Trial Court was adjudicated upon in

2011. No application for addition of the prayer was put forth in

the suit after the Trial Court came to a conclusion while

deciding exhibit 5 that the plaintiff is not in possession. The

said order should have awakened the plaintiff that the

injunction has been refused since it is concluded that he is not

in possession and as such he would have to take steps for

recovery of possession. For all those many years, he did not

move the Trial Court seeking permission for addition of a prayer

and the proposed paragraphs.

12. In this backdrop, I am of the view that the petitioner, in

order to overcome the conclusion of the Trial Court that he is

not in possession, has preferred exhibit 21. This facet of the

case would fall within the ambit of "whether the application for

amendment has been made with a bona fide intention?."

13. Considering the peculiar facts as above and as the

petitioner has not shown due diligence under the proviso to

Order VI Rule 17 of Code of Civil Procedure, I do not find that

the impugned order could be termed as perverse or erroneous.

The Hon'ble Apex Court in the matter of Syed Yakoob Versus

K.S. Radhakrishanan & Others [AIR and Surya 1964 SC 477]

Dev Rai Versus Ram Chander Rai & Others [(2003) 6 SCC 675] ,

has held that merely because a second view is possible, the

High Court would not be justified in causing interference in the

impugned order, unless the said order can be said to have

caused grave injustice to a litigant.

14. Considering the above, this petition is dismissed.

15. Needless to state, these observations and the observations

of the Appellate Court in the impugned order are with regard to

Exhibit 21 and the appeal before the Appellate Court would

naturally be decided on it's own merits without being influenced

by these observations.

( RAVINDRA V. GHUGE, J. ) S.P.C.