Bombay High Court
Kailas Padmakar Deshmukh vs Pallavi Vilas Patil And Others on 1 March, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12147 OF 2015
Kailas Padmakar Deshmukh (Patil) .. Petitioner
Age. 42 years, Occ. Service,
R/o. Jalgaon, at present
1 Ten Broke Court, Bride Water,
New Jersey, U.S.A. 08807, America.
Through General Power of Attorney
Prakash Sopan Patil
Age. 40 years, Occ. Business,
R/o. B 6/93, Elight Empire,
Balewadi, Pune - 45.
Versus
1. Smt. Pallavi Vilas Patil .. Respondents
Age. 37 years, Occ. Household,
2. Gaurav Vilas Patil
Age. 21 years, Occ. Education
3. Ku. Tejasvi Vilas Patil (Minor)
Age. 15 years, Occ. Education,
4. Tanuj Vilas Patil (Minor)
Age. 11 years, Occ. Education,
Res. No.3 & 4 as Minor through
Res. No.1 Their Natural Guardian Mother
Smt.Pallavi Vilas Patil
Res.no.1 to 4 all
R/o. Survey No.145/04, Plot No.12,
"Sadoba Nagar", Behind Supreme Tyers,
Old Bhusawal Road, Jalgaon,
Taluka & Dist. Jalgaon.
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5. Sau. Nalini Padmakar Patil
Age. 54 years, Occ. Household,
R/o. Datala, Taluka Malkapur,
Dist. Buldhana.
Mr.S.H. Tripathi, Advocate for the petitioner.
Mr.N.B. Suryawanshi, Advocate for respondent Nos.1 to 4.
Mr.S.S. Dixit, Advocate for respondent No.5.
CORAM : S.B. SHUKRE,J.
DATED : 01.03.2017
ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith and heard
finally by consent.
2. Reliance has been placed on the case of Sajjan
Kumar Vs. Ram Kishan, (2005) 13 SCC 89 by the learned
Counsel for the petitioner to support the contention that
the Trial Court ought to have allowed the amendment
application as it is necessary for determination of the
real controversy involved in the suit. Mr.N.B.
Suryawanshi, learned Counsel for respondent Nos.1 to 4
placed reliance on the judgment on the case of J. Samuel
& Ors. Vs. Gattu Mahesh & Ors. (2012)2 SCC 300 in support
of his contention that unless "due diligence" criteria is
satisfied, the amendment application cannot be allowed
and therefore no fault can be found with the impugned
order.
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3. Learned Counsel for respondent No.5 adopted
arguments of learned Counsel for respondent Nos.1 to 4.
4. By the amendment application, two types of
amendments have been sought. One relates to mentioning
of the four boundaries of two properties and other
relates to certain pleadings which are sought to be made
by way of clarification or amplification of pleadings
already made in the plaint. So far as first type of
amendment is concerned, I am of the view that the
observations of the Hon'ble Apex Court in the case of
Sajjan Kumar (Supra) could be fruitfully applied to the
facts of this case. In can well be seen in the case of
Sajjan Kumar (Supra), the proposed amendment sought
correction of description of the suit properties and
therefore Hon'ble Apex Court observed that allowing of
such amendment was necessary to avoid possible failure of
justice and needless litigation, by exercising the
jurisdiction vested in the Civil Court by law. In the
present case also, the description of the suit properties
is insufficient and therefore by the proposed amendment,
it has been sought to be completed. If the proposed
amendment in this regard is not allowed, there would be
needless complications and also possible failure of the
justice. Therefore, in exercise of supervisory
jurisdiction of this Court, it would be necessary to
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correct the error committed by the Civil Court by
allowing the amendment only to this extent.
5. It is true that in the case of J. Samuel (Supra)
the Hon'ble Apex Court has laid down that the requirement
of "due diligence" is unavoidable and the party seeking
to amend the pleadings must satisfy this criteria.
However, the law laid down by the Hon'ble Court in the
case of Sajjan Kumar (Supra) is on the premise that there
is a jurisdiction vested in the Civil Court inspite of
limitation of the priviso to Order 6 Rule 17 of C.P.C.,
to allow the amendment, in some situations. These
situations are of possible failure of justice and
multiplicity of litigation. So the Hon'ble Apex Court
held that in order to avoid possible failure of justice
arising from incorrect or insufficient description of the
suit property, such jurisdiction could be exercised in
favour of the party seeking amendment of pleadings. In
the instant case also the amendment seeks to provide the
boundaries of suit properties and therefore, I find that
the instant case would be governed by the law laid down
by the Apex Court in the case of Sajjan Kumar (Supra).
6. As regards, second type of amendment, I do not
think that it can be allowed as no reason whatsoever has
been provided in the application by the petitioners for
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the delay which occurred in seeking such amendment. In
the case of Narayan Madhavrao Pole Vs. Sumanbai w/o.
Uttamrao Napte, 2012(1) Mh.L.J.316, learned Single Judge
of this Court allowed the amendment application after
commencement of the trial by applying the ratio of Sajjan
Kumar (Supra), because it was thought by the learned
Single Judge that the proposed amendment was only in the
nature of amplification of the pleadings already made in
the complaint. The case of Sajjan Kumar (Supra),
indicates that the criteria of possible failure of
justice is writ large in those cases where the boundaries
of the suit properties are incorrectly mentioned and
where failure to clarify or amplify the pleadings in that
regard may result in possible failure of justice. This
ratio has been followed in the case of Narayan (Supra) by
the learned Single Judge of this Court, in the facts and
circumstances peculiar to that case. But facts of this
case being different, the ratio of J.Samuel (Supra) would
be applicable. Therefore, second type of amendment cannot
be allowed.
7. In the result, this writ petition deserves to be
partly allowed and it is allowed accordingly.
8. The first type of amendment as proposed in
paragraph 2 of the amendment application (Exh.37) is
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allowed and it be carried out within four weeks from the
date of the order. The second type of proposed amendment
mentioned in paragraph 3 of the amendment application is
rejected. The impugned order stands quashed and set
aside accordingly, subject to payment of costs of
Rs.2000/- to be deposited in the Trial Court before the
amendment allowed in terms of this order is carried out.
Rule made partly absolute in the above terms.
[S.B. SHUKRE,J.]
snk/2017/FEB17/wp12147.15
