Rambhau Tryambak Khachane ... vs Nandlal Govardhandas Chandak
2017 Latest Caselaw 7084 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH : NAGPUR



                             WRIT PETITION NO.6761/2016

Rambhau Tryambak Khachane, 
through power of Attorney Holder, 
Shri Nilkanth Rambhau Khachane, 
aged 58 Yrs., Occu. Agriculturist, 
R/o Talaswada, Tq. Malkapur, 
Distt. Buldana.                                                                                    (..dead)

L.Rs. of petitioner.

1)   Chandrakant Rambhau Khachane,
     aged about 62 Yrs., Occu. Agriculturist.

2)   Arvind Rambhau Khachane,
     aged about 60 Yrs., Occu. Agriculturist.                                                    (..dead)

2a) Nalu Arvind Khachane,
    aged about 55 Yrs., 
    R/o Talaswada at Post Tandulwadi, 
    Tah. Malkapur, Distt. Buldana.

2b) Chetan Arvind Khachane, 
    aged about 28 Yrs., 
    R/o Talaswada at Post Tandulwadi, 
    Tah. Malkapur, Distt. Buldana.

2c) Sau Kanchan Shankar Kinge,
    aged about 32 Yrs., 
    R/o Elgaon, Tq. Borwad, 
    Distt. Jalgaon.

2d) Sau. Pallavi Vijaykumar Choudhari, 
    aged 30 Yrs., R/o Vidri, at Post Vadri,
    Tq. Yaval, Distt. Jalgaon. 

3)   Nilkanth Rambhau Khachane,
     aged about 58 Yrs., Occu. Agriculturist. 




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4)         Sarang Rambhau Khachane,
           aged about 56 Yrs., Occu. Agriculturist.

           Petitioner Nos.1, 2 and 4 through power 
           of Attorney Holder, Shri Nilkanth Rambhau 
           Khachane, aged about 58 Yrs., 
           Occu. Agriculturist, R/o Talaswada, 
           Tq. Malkapur, Distt. Buldana.                                                                                                                       ..Petitioners.

               ..Vs..

               Nandlal Govardhandas Chandak, 
               aged 54 Yrs., Occu. Trader &
               Money Lender, R/o Malkapur, 
               Distt. Buldana.                                                                                                            ..Respondent.
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               Shri R.G. Kavimandan, Advocate for the petitioners. 
               Shri Bhushan Mohta, Advocate for the respondent.
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                                                                 CORAM :  S.C. GUPTE, J.

                                                                 DATE  :     13.9.2017.
ORAL JUDGMENT



                          Heard learned counsel for the parties. 

2. Rule. Taken up for hearing forthwith by consent of counsel.

3. The subject matter of challenge in the present petition is the

rejection of an amendment application moved by the plaintiff at the appellate

stage. The petitioners herein are legal heirs of the original plaintiff, since

deceased, substituted in his place. The plaintiff's suit is for a perpetual

injunction. He claims to be the owner of the suit property. It is his case that

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on the basis of an alleged sale deed dated 14 th August, 1989, which was

nominally executed by him, the defendant was trying to interfere with his

peaceful possession and as a result, he was constrained to file the present suit

seeking a perpetual injunction against the defendant. The suit was heard and

dismissed by the trial Court. Being aggrieved, the plaintiff filed an appeal

before the District Court at Buldhana. During the pendency of that appeal, the

plaintiff moved the present application for amendment of the plaint, seeking a

declaration that the sale deed dated 14 th August, 1989 was nominal, sham and

bogus and represented a money lending transaction and not a genuine sale in

the eyes of law and hence, not binding upon the plaintiff. The District Court

rejected that application. Hence the present writ petition.

4. The District Court rejected the application on two grounds. Firstly,

it held that the issue of the sham and bogus nature of the transaction of sale

was held by the trial Court against the plaintiff. The second ground was of

delay.

5. All amendments which are necessary to bring out the real

controversy between the parties to the suit are permissible. The amendment

proposed in the present suit being prior to the introduction of the proviso to

Order VI Rule 17 of the Code of Civil Procedure, the amendment could be

allowed at any stage of the suit (the appeal being nothing but a continuation of

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the suit) unless it changes the nature of the appeal or the suit, as the case may

be. In the present case, the very relief of perpetual injunction originally

claimed in the suit was based on an alleged invalid sale transaction. The sale

transaction was even originally termed as a nominal, sham and bogus and

money lending transaction. What was implicit earlier in the relief claimed in

the suit is now being sought to be made explicit. There is no reason why such

amendment should not be allowed. The amendment does not change the

nature of the suit or take away any substantive right accrued to the opponent in

defending the suit. As long as the merits of the amendment are open to debate

including the issue of limitation, the respondent need not have any

apprehension of being prejudiced at the trial by reason of the amendment. In

the premises, the impugned order of the District Court cannot be sustained.

6. Learned counsel for the respondent relies on the judgment of the

Supreme Court in the case of Revajeetu Builders and Developers V/s.

Narayanaswamy & Sons & Ors. reported in 2009(10) SCC 84. Relying on this

judgment, it is submitted that the amendment sought by the plaintiff in the

present case does not satisfy the principles laid down by the Supreme Court. In

Revajeetu Builders and Developers V/s. Narayanaswamy & Sons & Ors. (supra),

the Supreme Court, after analyzing English and Indian cases, laid down the

following six basic principles, which ought to be taken into consideration whilst

allowing or rejecting an amendment. These principles are as follows:

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        "(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."

7. The amendment application in the present case satisfies each of

these six principles laid down by the Supreme Court. The amendment is

necessary for a proper and effective adjudication of the case, since it explicitly

brings out the real matter in controversy and allows the Court to decide the suit

more effectively and so as to obviate any technical objection for non-inclusion

of a specific prayer for a declaration. There is nothing on record to suggest that

the application was moved mala fide. The amendment, as particularly noted

above, does not cause any prejudice to the respondent which cannot be

compensated adequately in terms of money. In fact, refusing such amendment

would lead to injustice and also may possibly lead to multiplicity of litigation.

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It cannot possibly be suggested that the amendment constitutionally or

fundamentally changes the nature or character of the suit. Though as a

general rule, the Court should decline an amendment to bring in a claim which

is barred by limitation on the date of the amendment application, in an

appropriate case it is always open to the Court to allow the amendment by

keeping the issue of limitation open, to be decided in the trial. In the present

case, considering the nature of the relief sought to be added, which was, as

noted above, in the first place, implicit in the original relief claimed in the suit,

this is one such case, where the amendment should have been allowed by

keeping the issue of limitation open.

8. The District Court has, thus, committed a grave illegality in rejecting

the amendment, whilst exercising jurisdiction under Order VI Rule 17 of the

Code of Civil Procedure. Hence, Rule is made absolute by quashing and setting

aside the impugned order dated 5th July, 2016 and allowing the amendment

application of the petitioner herein (Exh. No.37). It is made clear that all

rights and contentions of the parties on the merits of the amended plaint

including the issue of limitation are kept open, to be decided in the pending

civil appeal.

JUDGE Tambaskar.