Parmilabai Machindra Harne vs Ganesh Narayan Harne
2017 Latest Caselaw 3590 Bom

                                       1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                      WRIT PETITION NO. 6001 OF 2016

 Parmilabai W/o. Machindra Harne,
 Age : 28 yrs, Occ.: Household,
 R/o. A/p. Himmatrao Tulsiram Sure,
 R/o. Jadhavwadi, Jalgaon Road, 
 Aurangabad, Dist. Aurangabad.                                   ...Petitioner.
  
       Versus

 Ganesh S/o. Narayan Harne,
 Age : 56 years, Occ.: Agri.,
 R/o. Harsul, Aurangabad,
 Tq. & Dist. Aurangabad.                                      ...Respondent.

                 Advocate for Petitioner : Shri R.V. Gore.
                Advocate for Respondent : Shri P.V. Langhe.

                                      CORAM : RAVINDRA V. GHUGE, J.

                                      Dated    : 23rd June, 2017

 ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by

the consent of the parties.

2. The petitioner is aggrieved by the order dated

11/03/2016, by which, application Exhibit 15, has been

rejected by the Trial Court and leave to amend the written

statement under Order VI Rule 17 of the Code of Civil Procedure

("CPC") has been refused.

3. This Court by order dated 13/06/2016, has stayed the

suit and has granted ad-interim relief in terms of prayer Clause

'C'. Since, then Regular Civil Suit No. 386/2015 has been

stayed.

4. I have considered the strenuous submissions of the

learned advocates for the respective sides. Learned counsel for

the respondent relies upon the following judgments :

(A) Chakreshwari Construction Private Limited Versus

Manohar Lal [(2017) 5 SCC 212].

(B) J. Samuel and others Versus Gattu Mahesh and others

[(2012) 2 SCC 300].

(C) Jayashree Subhash Kalbande and another Versus Shri

Bhaurao Nagorao Derkar and others [2015 (1) Bom C.R. 403].

(D) Chandrashekhar S/o. Pandurang Tumsare Versus

Balkrishana S/o. Shivkaran Changani (Sharma) and others

[2016 BCI 81].

(E) Modi Spinning and Weaving Mills Company Limited Versus

Ladha Ram and Co. [(1976) 4 scc 320].

5. The respondent / original plaintiff has filed the suit on

08/04/2015, praying for declaration that he is the exclusive

owner and possessor of the suit property. Along with such

declaration, he has prayed for injunction, which has been

granted by the order dated 31/08/2015 passed below Exhibit 5.

It is concluded in the order granting injunction that though the

sale deed at issue indicates that the suit land was purchased in

the name of the plaintiff and deceased husband of the

defendant, there is a possibility that the deceased may not be 18

or 19 years on the date of the sale deed and can be about 6 to 7

years of age, going by the school records.

6. The dispute between the parties is that the respondent /

plaintiff has sought injunction against the defendant /

petitioner who is the widow of deceased Machindra, who was a

real brother of the plaintiff.

7. The petitioner filed written statement on 16/07/2015. On

24/11/2015, after the application Exhibit 5 was allowed on

31/08/2015, she moved an application for seeking amendment

to the written statement. By the impugned order, the

amendment has been rejected for three reasons which are as

follows :

(A) The petitioner / defendant has contended in

paragraph No. 7 of the written statement that the suit

property is the self acquired property of the deceased

husband. In the proposed amendment she seeks to

contend that the suit property is purchased from the

amount of compensation received from the Government in

1987 as the ancestral land was acquired.

(B) The petitioner / defendant has not stated how

much compensation was received through the acquisition

proceedings.

(C) She has not disclosed the source of information

with regard to the acquisition of the ancestral property.

8. It is trite law that the merits of the proposed amendment

are not to be assessed while considering the application for

amendment. The Court is not expected to look into the issue as

to whether the proposed amendment holds merit. The grounds

mentioned in clauses 'B' and 'C' above clearly shows that the

Trial Court has entered into the merits of the amendment.

9. In so far as the first ground, on which the application has

been rejected, is that a self contradictory stand has been taken

by the petitioner / defendant. It is trite law that contradictory

stand would defeat the case of a litigant as the litigant is always

at risk of losing the litigation, if contradictory stands have been

put forth. The petitioner on legal advise has decided to take the

said risk.

10. It is not the case of the defendant that she desires to

delete paragraphs set out in the said written statement which

tantamount to admission, and replace them by the proposed

paragraphs. The law laid down by the Hon'ble Apex Court in

the matter of Modi Spinning and Weaving Mills (Supra), clearly

indicates that the Trial Court has refused the leave to amend

the written statement, when the defendant had sought to delete

paragraph No. 25 and 26 which were clear admission in

response to the plaint and has sought to replace them with two

new paragraphs which would totally change the complexion of

the stand taken by the defendant. In the instant case, if the

defendant has sought to delete certain paragraph after the order

below Exhibit 5 was passed, she could have been precluded

from doing so as according to the plaintiff, she has given certain

admissions.

11. It is settled that an application for amendment to a

written statement has to be entertained liberally, unless

inordinate delay and laches could be attributed to the conduct

of the defendant. On the date the application for amendment

was filed, the issues were not cast. The suit was only six

months old. I do not find that this can be said to be an

inordinate delay or deliberate act of the petitioner / widow in

moving the application.

12. It cannot be ignored that this litigation is between close

family members and the defendant is a widow who is 27 years

old and finds herself alone in litigation against her brother-in-

law who intends to take away the annual proceeds of the land

which, as per revenue record, stands in the name of her

deceased husband. The law laid down by the Hon'ble Supreme

Court in the matter of Ravajeetu Builders and Developers

Versus Narayanaswamy & Sons, [(2009) 10 SCC 84], has been

referred to in the matter of Chakreshwari Constructions (Supra).

The Hon'ble Apex Court has held that if refusal of the

amendment is likely to cause injustice to any litigant and if the

application for amendment does not suffer laches and / or

inordinate delay, the case for amendment could be considered.

13. The thrust of the plaintiff's submission is that self

contradictory stands are taken by the proposed amendment.

Even if that be so, ultimately, it is for the petitioner / defendant

to suffer if the contradictory stands turn to be fatal to her case.

14. Considering the facts as recorded above, I am of the view

that in order to allow the defendant to put forth her case, the

application could have been allowed, moreso when the

application was filed when the suit was just six months old.

15. Considering the above, this petition is allowed. The

impugned order dated 11/06/2013, is quashed and set aside

and application Exhibit 15 is allowed with the direction to the

petitioner that the amendment in the written statement shall be

carried out within a period of three week's from today. It is

made clear that the background in which this application has

been allowed, would preclude the petitioner from deleting any

paragraph from the written statement and would not be

permitted to alter the pleadings.

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