Bombay High Court
Dr. Pramod S/O Dineshchandra ... vs Ismail Ibrahim Sheikh Thr. Lrs. ... on 8 September, 2017
Bench: S.C. Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 6406 OF 2016
1] Dr. Pramod S/o Dineshchandra Dixit,
Aged about 39 years, Occ : Business.
R/o. New Gumgaon (Waghdhara),
Tahsil : Hingna, District : Nagpur.
2] Iqbal Mohammed S/o Iqbal,
Aged about 49 years, Occu.: Household,
Gumgaon, Taluka : Hingna, Dist : Nagpur. .....PETITIONERS
...V E R S U S...
1] Ismail Ibrahim Sheikh,
Aged about 75 years, Occu : Agriculturist.
Gumgaon, Taluka : Hingna, Dist.: Nagpur,
(Died on 23-11-2012) and his legal heirs
are brought on Record as per Hon'ble
Court's order dated 18-01-2012).
i) Mr. Tayar Mohammed S/o Ismail Ibrahim Sheikh,
Aged about 50 years. Occu : Private Service,
resident of at Post Gumgaon, Tah-Hingna,
District - Nagpur.
ii) Mr. Kausar Mohammed S/o Ismail Ibrahim Sheikh
Aged about 47 years, Occ.: Service,
resident of at Post Gumgaon, Tah : Hingna,
District - Nagpur.
iii) Mr. Abral Mohammed S/o Ismail Ibrahim Sheikh,
Aged about 47 years, Occ.: Private Service,
At post Hinganghat, C/o Noorjanha
Eggs Merchant, District : Wardha.
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iv) Mrs. Mahjabin W/o Firoj Sheikh,
Aged about 42 years, Occ.: Housewife,
Resident of Sheetla Mata Mandir,
Dubey Mohalla, Panderkawada,
District : Yavatmal.
v) Mr. Afsar Mohammed S/o Ismail Ibrahim Sheikh,
Aged about 41 years, Occ.: Private Service,
resident of At Post Gumgaon, Tah-Hingna,
District - Nagpur.
vi) Shabia Wd/o Ismail Ibrahim Sheikh,
Aged : Adult, Occ.: Housewife,
Resident of at Post Gumgaon,
Tah : Hingna, District : Nagpur.
2] Abdul Sadiq S/o Abdul Gaffar,
Aged about 35 years, Occ.: Business,
Resident of Plot No.56-B, Gandhi
Layout, Jafar Nagar, Nagpur-13.
3] Sayed Ramzan Ali S/o Late Sayed Hasan Ali,
Occu.: Service, Resident of Juna Jail Khana,
Shukat Ali Chowk, Ganjipeth, Nagpur.
(Defendant No.2 and 3 added as per
Court's order dated 13-07-2011). ...... RESPONDENTS.
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Shri P. P. Kotwal, Advocate for the petitioners.
Shri S. R. Bhongade, Advocate for Respondent No.1.
Shri N. A. Gaikwad, Advocate for Respondent Nos.2 and 3.
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CORAM : S. C. GUPTE, J.
th
DATE : 8
SEPTEMBER, 2017.
ORAL JUDGMENT :
Heard learned counsel for the parties.
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02] Rule. Taken up for hearing forthwith by consent of
counsel.
03] The challenge in the present petition is to an order
passed by the 4th Joint Civil Judge, Senior Division, Nagpur on an
application for amendment of plaint under Order VI Rule 17 of the
Code of Civil Procedure.
04] The petitioners herein are originally plaintiffs in
Special Civil Suit No.1324/2017. The suit is for specific
performance of an agreement for sale of immovable property. The
property, in accordance with the agreement between the parties
which is annexed to the plaint, is described as land at Gumgaon,
P.H. No.48, Grampanchayat Gumgaon, Tahsil Hingna, District
Nagpur, Survey Nos.3/1 and 3/3, admeasuring 1 Hector 67 R. The
amendment application itself is on the footing that the area of
property mentioned in the agreement for sale, namely, 1 Hector 67
R was wrongly reflected as 2.15 Acres in the plaint. The mistake is
stated to have occurred due to wrong conversion of hectors into
acres. A proper conversion would require the land to be described
as admeasuring around 3 Acres. The agreement itself did not name
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the total price of the land in absolute terms. The consideration was
mentioned in the form of a rate, i.e. Rs.2,41,786/- per acre. Since
the area of the land itself was wrongly computed at 2.15 Acres, the
total consideration was also mentioned wrongly as Rs.5,18,156/-.
This mistake also reflected on the averments made in the plaint
concerning performance of the agreement on the part of the
plaintiffs. Since the agreement required payment of Rs.1,35,000/-
towards earnest and the balance amount was to be paid at the time
of execution and registration of the sale deed, and the plaintiffs
having further paid a sum of Rs.3,85,000/- towards sale of the suit
property at the request of the defendants, the averment in the
plaint was to the effect that the entire consideration fixed under the
agreement (which as noted above, came to Rs.5,18,156/- on the
basis of the area wrongly stated as 2.15 Acres) was paid and that
against such payment the defendants were bound and liable to
execute the sale deed in favour of the plaintiffs. The original
mistake of wrong conversion of hectors into acres for describing the
area of the land, accordingly, resulted in the wrong calculation of
the total payable amount towards sale of the suit property and also
led to the wrong averment that the entire consideration was duly
paid by the plaintiffs to the defendants. In these circumstances,
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when the mistake was noticed by them, an application was made
by the plaintiffs, to amend the plaint inter alia by correcting the
area of the suit property described in the plaint and also making an
averment that the plaintiffs were ready and willing to pay the
balance consideration towards purchase of the suit property.
Whilst the trial Court allowed the amendment partly, that is to say,
by allowing the plaintiffs to correct the area of the suit property, it
refused to allow the plaintiffs to incorporate averments concerning
their readiness and willingness to pay the balance consideration
towards purchase of the suit property. This part rejection of the
amendment application is the subject matter of challenge in the
present petition.
05] At the outset, it has to be noted that the impugned order
of the trial Court is passed on the footing that the trial of the suit
has not commenced. Though affidavit of evidence in lieu of
examination in chief was earlier filed by the plaintiffs, the same
was withdrawn by them and thus, there was no affidavit of
evidence on record. For considering the propriety and correctness
of the order, the amendment, accordingly, has to be
considered as a per-commencement of trial amendment.
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06] The amendment itself was said to have been
necessitated, as we have noted above, due to the original error in
converting the area of the property from hectares into acres. Not
only the correction of the area but all other aspects of amendment
sought in the present application spring from that central mistake.
Because of area in conversion not only is the area of the suit
property reflected incorrectly in the body of the plaint but even the
total consideration for the sale of the suit property has been
wrongly computed (since that was not stated in absolute terms, but
in the form of a rate). As a necessary concomitant, it is the
plaintiffs' case, the performance of the suit agreement on the part
of the plaintiffs has been wrongly averred. The wrongly computed
compensation having been paid by the plaintiffs, the averment was
to the effect that the entire consideration was paid. Upon realizing
the mistake and correcting the area and consequently the
computation of the total consideration, it is apparent that what is
paid is not full consideration but a part thereof, leaving the balance
payable. As for this balance consideration, the plaintiffs want to
aver readiness and willingness to pay.
07] The forgoing discussion clearly indicates that if at all the
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Court were to accept the plaintiff's case of mistake in conversion of
area and accordingly, allow correction of the area of the suit
property, the Court could not reject the other amendments
concerning (i) the total consideration payable, (ii) part
consideration paid and (iii) balance consideration payable, for
which the plaintiffs express their readiness and willingness.
08] The Hon'ble Supreme Court in the case of Gajanan
Jaikishan Joshi ..vs.. Prabhakar Mohanlal Kalwar, reported in
(1990) 1 Supreme Court Cases 166, permitted an amendment to
the plaint which introduced the averment of readiness and
willingness required under Section 16(c) of the Specific Relief Act.
The Court held that the averment was originally not made,
probably on account of some oversight or mistake, and that mistake
was sought to be rectified by the amendment applied for. The
Court held that there was no fresh cause of action sought to be
introduced and hence, no question of causing any injustice to the
opponent on that account arose. The ratio of that judgment clearly
applies to the plaintiffs' case here.
09] The amendment by no means implies that the Court
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accepts the case pleaded by the plaintiffs either of their original
mistake or the resultant mistakes which followed or their readiness
and willingness to pay the balance consideration. The only
implication is that the plaintiffs would have an opportunity to
prove such case at the trial, whilst the defendants would equally
have an opportunity to defend such case.
10] Learned counsel for the respondents, relying on the
judgment of our Court in the case of Jayashree Subhash Kalbande
and Another ..vs.. Bhaurao Nagorao Derkar and Others,
reported in 2014(4) Mh. L. J. 168, submits that unless a case of
due diligence is made out under the proviso to Order VI Rule 17, it
is not permissible to allow the application for amendment after the
commencement of trial. First of all, this issue does not arise in the
present case, since the amendment is allowed expressly on the
footing that the trial has not commenced and there is no objection
raised to the order allowing part amendment on that basis.
Secondly, and at any rate, if the plaintiffs' case that the area of the
suit property was wrongly described due to an error in conversion
from hectares into acres comes within the rule of due diligence, so
do the resulting errors in computing the total consideration and
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making averments concerning readiness and willingness.
11] The other judgment of our Court cited by learned
counsel for the respondents, namely, the case of Vera Lelisa Viegas
Pereira ..vs.. Agnelo Caetano Colaco and Others, reported in
2014 (1) Mh. L. J.170, also has no application to the facts of the
present case. That case was decided under the proviso to Order VI
Rule 17 and in the context of the fact that there was no averment
of due diligence on the part of the applicant.
12] As held by our Court in the case of N. C. Banerjee and
Company ..vs.. Manoj Balkrishna Shah and Others, reported in
2011(6) Mh. L. J. 55, merely because the amendment application
is allowed, the case of the applicant pleaded in the amendment is
not to be treated as accepted by the Court. The plaintiffs' case that
the statement of area of the suit property was a bona fide error on
their part and the resultant want of averment of readiness and
willingness was the direct result of that bona fide error, will have to
be made out at the trial of the suit, since it is an important aspect of
the plaintiffs' purported readiness and willingness which anyway is
a vital issue at the trial of the suit.
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13] In the premises, the impugned order of the trial Court
cannot be sustained. The Trial Court has committed a grave
illegality in exercise of its jurisdiction under Order VI Rule 17 and
the same needs to be corrected in the interest of justice.
14] Accordingly, Rule is made absolute in terms of prayer
Clause-I of the petition. The impugned order of the Joint Civil
Judge Senior Division, Nagpur, is quashed and set aside to the
extent it partly rejects the plaintiffs' application for amendment
(Exh.54). The plaintiffs' application (Exh.54) is allowed. No order
as to costs.
15] The respondents (original defendants) shall be entitled
to amend their written statement so as to deal with the amended
plaint.
16] At the joint request of counsel, the hearing of the Special
Civil Suit is directed to be expedited. The Court shall dispose of the
suit as expeditiously as possible and preferable within a period of
one year from today.
JUDGE
PBP
