Surekha Suresh Jadhav vs Shobha Mahesh Jadhav And Ors
2018 Latest Caselaw 15 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION

                                     WRIT PETITION NO. 13296 OF 2017


Surekha Suresh Jadhav                                                             ...           Petitioner
          V/s.
Shobha Mahesh Jadhav & Ors.                                                       ...           Respondents



     •     Mr.Samir Kumbhakoni for the Petitioner.
     •     None for the Respondents.


                                   CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.

                                   DATE                 : 4 th JANUARY, 2018.


ORAL JUDGMENT :-

1]                     Heard learned counsel for the Petitioner, finally at the

stage of admission itself.



2]                     By this petition filed under Article 227 of the Constitution

of India, the Petitioner is challenging the order dated 20 th September,

2017 passed by 2nd Joint Civil Judge Senior Division, Solapur below

Exhibit 165 in Special Civil Suit No.172 of 2012. The said application

at Exhibit 165 was preferred by the Petitioner, who is Defendant No.1

before the trial Court seeking amendment in the written statement

under Order-VI Rule-17 of the Civil Procedure Code (for short "C.P.C.").

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3]                     It was submitted that at the time of filing the written

statement, the Petitioner has mentioned in the written statement that

some properties are her self acquired properties; however the details

of the self acquired properties were not given in the written

statement, therefore, by way of amendment, the Petitioner wants to

introduce those details and hence, it was requested that amendment

application be allowed.

4] The trial Court, however, after hearing learned counsel for

the parties was pleased to reject the said application on two counts.

Firstly, the amendment application is filed at the belated stage and

secondly, the proposed amendment is not necessary at all.

5] While challenging this order of the trial Court, the

submission of learned counsel for the Petitioner is that the proposed

amendment does not change the nature of the suit or the defence

raised by the Petitioner. On the contrary, it is merely of a clarification

nature giving further details and clarifying certain facts; proposed

amendment is also necessary for deciding real controversy between

the parties and hence, such amendment should have been allowed by

the trial Court.

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6]                     However, the undisputed facts of this case reveal that the

Respondent/Plaintiff has filed this suit for partition and separate

possession of her share in the suit property. The said suit was decreed.

Thereafter, the appeal was preferred bearing Regular Civil Appeal

No.94 of 2015 by Defendant No.3. The said appeal was allowed and the

matter was remanded to the trial Court for fresh decision on merits on

the additional issues framed by the Appellate Court. The order of

remand of the matter was passed by the Appellate Court on 25 th

January, 2017. In the Appellate Court itself, the additional issues were

specifically framed and both the parties were given an opportunity to

lead additional evidence on those issues. Thereafter, on 3rd August,

2017, the Petitioner has preferred this application for amendment in

the written statement.

7] In my considered opinion, in view thereof, the Proviso to

Order-VI Rule-17 of C.P.C., clearly becomes applicable in the present

case, as a clear embargo is laid down in the said Proviso to the effect

that, once the trial has commenced, no amendment in the pleading

shall be allowed, unless the party makes out a case that despite due

diligence, he could not have sought such amendment earlier. As held

by the Apex Court in the case of Vidyabai & Ors. Vs. Padmalatha &

Anr. [(2009) 2 SCC 409], the Proviso to Order-VI Rule-17 is couched in

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a mandatory form. Hence the Court's jurisdiction to allow such an

application is taken away unless the conditions precedent laid down

therein therefor are satisfied viz. Court must come to a conclusion

that inspite of due diligence the party could not have raised the matter

before the commencement of the trial.

8] In the present case, entire application filed before the trial

Court seeking amendment in the written statement is conspicuously

silent as to why the Petitioner has not given these details about the

self acquired properties at the time of filing written statement. Merely

stating that those details remained to be stated in the written

statement and therefore, now the Petitioner should be permitted to do

so is not sufficient; especially in the facts of the present case, when

admittedly the suit was of the year 2012 and at that time Defendant

No.1 has filed a written statement. The suit was also decreed. Only

because Defendant No.3's contentions were not considered and issues

to that effect were not framed, the Appellate Court has remanded the

matter. Thereafter also for 7 months, no further steps were taken by

the Petitioner and the application is thus filed after the trial has

commenced. The issues were framed in the decision of the Appellate

Court itself. Hence, it was incumbent upon the Petitioner to satisfy the

Court to come to its decision that despite due diligence, the Petitioner

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could not have earlier raised this proposed amendment. The Petitioner

has failed to do so and, in such situation, the Proviso which is couched

is mandatory form as the word of "shall" indicates, definitely comes in

the way of the Petitioner getting the required relief. As held by the

Apex Court in the case of Vidyabai & Ors. Vs. Padmalatha & Anr.

(supra), the Proviso appended to Order-VI Rule-17 C.P.C. restricts the

power of the Court. It puts an embargo on exercise of its jurisdiction.

The Court's jurisdiction in a case of this nature is limited. Thus, unless

the jurisdictional fact, as envisaged therein, is found to be existing, the

Court will have no jurisdiction at all to allow the amendment of the

plaint. Hence, the trial Court has rightly rejected this application on

this ground.

9] Secondly, on merits also, if one considers the application

given by the Petitioner before the trial Court, it is apparent and

crystal clear that the Petitioner is introducing many additional facts

by way of amendment and it is not merely a clarificatory or

consequential amendment. All these facts were very much in the

knowledge of the Petitioner. It is not the case of the Petitioner that he

came to know these facts subsequently or they occurred after filing of

the written statement. Moreover, these facts which are sought to be

introduced by way of amendment are not merely of a clarificatory

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nature also but they are to some extent changing the defence raised

by the Petitioner, as observed by the trial Court.

10] In such situation, the trial Court has on this count also

rightly rejected the said application. The impugned order passed by

the trial Court therefore being just, legal and correct; no interference

is warranted therein.

11]                    Writ Petition hence stands dismissed.



                                               [DR.SHALINI PHANSALKAR-JOSHI, J.]