Bombay High Court
Balasaheb Sarjerao Dangade And ... vs Chandar Shiva Sasane, L.Rs. ... on 12 June, 2017
Bench: R.V. Ghuge
WP/9289/2014
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9289 OF 2014
WITH
CIVIL APPLICATION NO. 12426 OF 2015
1. Balasaheb Sarjerao Dangade,
Age. 40 years, Occ. Agri.,
R/o. Ghugalwadgaon, Taluka Shrigonda,
District Ahmednagar.
2. Smt. Adika Sadashiv Dhawang,
Age. 55 years, Occ. Household,
R/o. In front of Zilla Parishad Marathi
Primary School, Shrigonda,
Taluka Shrigonda, District, Ahmednagar.
3. Smt. Ranjana @ Bayadabai Haridas
Pandule, Age. 47 years, Occ. Household,
R/o. In front of Zilla Parishad Marathi
Primary School, Shrigonda, District
Ahmednagar. ..Petitioners.
Versus
1. Chandar Shiva Sasane,
Deceased through his L.Rs.
Shivram Chandar Sasane,
Age. 68 years, Occ. Agri.,
R/o. Ghugalwadi, Taluka Shrigonda,
District Ahmednagar.
2. Baba Babu Guldagad,
Deceased through his L.Rs.
2-A. Appa Baba Guldagad,
Age. 44 years., Occ. Agri.,
R/o. Lipangan, Dhagarvasti,
Tq. Shrigonda, District Ahmednagar.
2-B. Bhanudas Baba Guldagad,
Age. 47 years, Occ. Agri.,
R/o. Ghugalwadi, Taluka Shrigonda,
District Ahmednagar.
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WP/9289/2014
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2-C. Sanjay Baba Guldagad,
Age. 37 years, Occ. Agri.,
R/o. Jangalewadi, Shrigonda Factory,
Taluka Shrigonda, District Ahmednagar.
2-D. Smt. Kantabai Dhukaji Shriram,
Age. 57 years, Occ. Agri.,
R/o. Pishorakhand, Taluka Shrigonda,
District Ahmednagar.
2-E. Smt. Suman Sampat Sarak,
Age. 42 years, Occ. Agri.,
R/o. Lipangan, Dhangarvasti,
Taluka Shrigonda, District Ahmednagar.
2-F. Smt. Kaushalyabai Baba Guldagad,
Age. 67 years, Occ. Housewife,
R/o. Ghugalwadi, Taluka Shrigonda,
District Ahmednagar.
3. Narayan Sarju Dangade,
Age. 55 years, Occ. Agri.,
R/o. Ghugalwadi, Taluka Shrigonda,
District Ahmednagar.
4. Smt. Rajubai Sarju Dangade,
Age. 68 years, Occ. Housewife,
R/o. Ghugalwadi, Taluka Shrigonda,
District Ahmednagar.
5. Pushpabai Vithal Waghmore,
Age. 42 years, Occ. Agri.,
R/o. Shinde, Taluka Karjat,
District Ahmednagar. ..Respondents.
...
Advocate for Petitioners : Shri S.S.Jadhavar
Advocate for Respondents : Shri S.P.Brahme
Advocate for Respondents 2A to 2F : Shri D.S.Dikale
h/f Shri V.D.Sapkal
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: June 12, 2017
...
WP/9289/2014
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition
is taken up for final disposal.
4. The petitioner is aggrieved by the order dated 26.8.2014, by
which, the trial Court has allowed application Exhibit 127, filed by
the respondent / original plaintiff in RCS No.118 of 1979, thereby,
permitting the plaintiff to amend the plaint under Order VI Rule 17 of
the CPC and the proviso thereunder.
5. I have considered submissions of the learned Advocates for
respective sides and have gone through the petition paper book with
their assistance.
6. The grievance of the petitioner is that by the proposed
amendment, a different challenge is being sought to be putforth by
the proposed paragraph No.5A. The sale deed dated 13.6.1969 is the
subject matter of RCS No. 118 of 1979, which was instituted on
15.2.1979. The entire evidence of the plaintiff and defendants has
WP/9289/2014
been recorded. The suit is practically 38 years' today. After a
passage of 35 years, the plaintiff has moved application Exhibit 127
on 9.6.2014, proposing the amendment under paragraph No.5A. Issue
as regards the effect of Section 5(4) of the Maharashtra Inferior
Village Watan Abolition Act ("Act of 1958")has been raised for the
first time. Effect of lack of permission by the District Collector,
without which the sale deed cannot be given full effect, has been
raised after 35 years of the filing of the suit and after the recording
of evidence. It is, therefore, contended that the nature of the suit
and the cause of action is sought to be substantially altered.
7. Shri Brahme, learned Advocate has strenuously defended the
impugned order on the ground that the legality of the sale deed
13.6.1969 has been raised in the suit. Paragraph No.4 deals with the
contention of the plaintiff that the said sale deed is illegal and as
such the sale would not be binding upon the plaintiff. He submits
that since the pleadings are found in the plaint and a specific prayer
having been inadvertently left out, justifies the amendment
notwithstanding the effect of the proviso to Rule 17 under Order VI of
the CPC. He, therefore, submits that even after considering the
aspect of due diligence, the amendment could be allowed.
8. I find from the impugned order that the trial Court has not
considered the aspect of due diligence. The suit at the time of the
WP/9289/2014
passing of the impugned order was 35 years' old and though the
plaintiff has not putforth a specific contention with regard to the
applicability of the Act of 1958, the amendment has been allowed. I
do not find that the trial Court has taken into account the aspect of
due diligence, which finds place in the CPC under the proviso to Rule
17 of Order VI. The legislative intent and object behind introducing
the proviso to Rule 17 is evident. It is intended that an amendment
ought not to be allowed belatedly. When the recording of evidence
in the matter was complete and when the issue pertains to the sale
deed dated 13.6.1969, whose legality is subject matter of the suit
with pleadings under paragraph No.4 of the plaint, I do not find that
the trial court was justified in allowing the application for
amendment.
9. In the light of the above, this petition is allowed. The
impugned order dated 26.8.2014 is quashed and set aside and
application Exhibit 127 stands rejected. Needless to state, the trial
Court while delivering the judgment in RCS No.118 of 1979, shall
consider the effect of the pleadings set out in the plaint and
especially paragraph Nos.3 and 4 in the light of the oral and
documentary evidence.
10. Rule is made partly absolute in the above terms.
WP/9289/2014
11. Since the suit is of the year 1979, the joint request of the
learned Advocates for expediting the suit is accepted. The trial
Court shall decide the said suit as expeditiously as possible and in any
case on/or before 13.10.2017.
12. Pending Civil Application, if any stands disposed off.
( RAVINDRA V. GHUGE, J. )
...
akl/d
