Jindal South And West Steel Ltd. ... vs Smt. Indira Raghunath Bargude , ...
2018 Latest Caselaw 20 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION

                                     WRIT PETITION NO. 10819 OF 2017


Jindal South and West Steel Ltd.                                                              ...           Petitioner
           V/s.
Smt.Indira Raghunath Bargude & Anr.                                                           ...           Respondents



     •     Ms.Manisha Jagtap a/w. Mr.Akshay Kahodia i/b. J. Shekhar &
           Co. for the Petitioner.
     •     Mr.Rajesh Bhaskar Parab for the Respondents.


                                   CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.

                                   DATE                 : 4 th JANUARY, 2018.


ORAL JUDGMENT :-

1]                     Rule. Rule made returnable forthwith. With the consent of

learned counsel for the Petitioner and for the Respondents, heard

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 17 th August,

2017, passed by the Gram Nyayalay Nyayadhikaran, Ratnagiri, below

Exhibit 58 in Regular Civil Suit No.93 to 2013. The application below

Exhibit 58 was filed by the Petitioner under Order-VI Rule-17 of Civil

Procedure Code (for short "C.P.C.") for carrying out necessary

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amendment in the written statement. The Petitioner is Defendant No.1

before the trial Court. According to the Petitioner, the proposed

amendment is for the purpose of giving details about the relationship

between the Plaintiff and one Barkya Baba Bargude and to show that

Barkya Baba Bargude was the Karta of Joint Family and in that

capacity he has executed the sale-deed of the suit property in favour of

the Petitioner. According to the Petitioner, at the time of filing the

written statement, the Petitioner was not aware of this detail

genealogy and the relationship between Respondents/Plaintiffs and

this Barkya Baba Bargude and therefore, by carrying out the

necessary amendment he wanted to introduce the details about the

said relationship and the circumstances that resulted into execution

of the sale-deed by Barkya Baba Bargude in favour of the Petitioner.

3] This application came to be resisted by the Respondents/

Plaintiffs on the count that the trial of the suit has already

commenced, even the evidence of Respondents/Plaintiffs was

recorded. The matter was posted for evidence of the

Defendant/Petitioner and at this stage, by moving such application the

Petitioner was trying to introduce a totally new story. It was

submitted that the very case of the Respondent/Plaintiff is that she is

the sole owner of the suit property and the record of rights also stands

in her name alone. Therefore, Barkya Baba Bargude had no right to

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execute the sale-deed of the suit property. Hence, the proposed

amendment will change the nature of the suit and therefore, on merits

also the application for amendment needs to be dismissed.

4] After hearing the learned counsel for both the parties, the

trial Court was pleased to reject the said application on two counts.

First, that the amendment was sought at a belated stage and

therefore, bar created under Proviso to Order-VI Rule-17 of C.P.C.

becomes applicable. Secondly, on merits also, it was held that the

proposed amendment is going to change the nature of the suit and

accordingly on both these counts, the trial Court found it fit to reject

the application.

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

submission of the learned counsel for the Petitioner is that the

proposed amendment is necessary to decide all the questions raised in

controversy between the parties finally and the refusal to permit the

amendment would create endless complications. In support of this

submission learned counsel for the Petitioner relied upon the

judgment of the Apex Court in the case of Usha Devi vs. Rijwan

Ahamd & Ors. [(2008) 3 SCC 717].

6] Per contra, learned counsel for the Respondents has

supported the impugned order of the trial Court by pointing out that

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the Petitioner has not only sought the amendment at belated stage;

when the matter was posted for recording evidence of Defendants but

thereafter also the Petitioner has sought about eight adjournments

before the trial Court, which clearly indicate the intention on the part

of the Petitioner which is to prolong and protract the hearing of the

suit. According to learned counsel for the Respondents, even on merits

as the proposed amendment is going to change the nature of the suit

itself, the trial Court has rightly rejected the said application.

7] In this case, it is an undisputed fact that the trial of the suit

has already commenced. Not only that, the evidence of Respondents/

Plaintiffs is recorded and now the matter is posted for recording the

evidence of the Petitioner/Defendant. At this stage, the amendment

application is moved with a bare and vague averment that the

Petitioner was not earlier aware about the details of genealogy and

relationship between Barkya Baba Bargude and the Respondents/

Plaintiffs. Now, the question for consideration is whether such

amendment can be allowed at this stage, especially having regard to

the Proviso to Order-VI Rule-17 of C.P.C., which clearly lays down that

no application for amendment shall be allowed after the trial has

commenced, unless the Court comes to the conclusion that inspite of

due diligence the party could not have raised the matter before the

commencement of the trial.

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8]                     Thus, in view of Proviso to Order-VI Rule-17 of C.P.C., a

clear embargo is laid down 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 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.

9] In this case, except for some vague and bare averment

in the application for amendment that at the time of filing initial

written statement, the Petitioner was not aware of the detailed

genealogy between the Plaintiffs and Barkya Baba Bargude, there is

nothing on record to show that the Petitioner has exercised the due

diligence to know such genealogy and despite that he could not get the

details. As observed by the trial Court, the conduct of the Petitioner

also does not show that he has exercised due diligence at any time.

The suit was filed in the year 2013 and now it is mostly at the stage of

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completion of trial as the evidence of the Plaintiffs is already recorded

and now the matter is posted for recording the evidence of the

Petitioner/Defendant. Therefore, here it is apparent and clear that the

Petitioner has failed to cross the most vital embargo laid down in the

Order-VI Rule-17. 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 put 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. In such situation, the trial

Court has rightly rejected the application of the Petitioner on this

ground.

10] Even as regard the merits of the proposed amendment,

though the submission of the learned counsel for the Petitioner is that

it will not change the nature of the suit, the Order passed by the trial

Court clearly reflects that now the Petitioner wants to introduce a new

case that Barkya Baba Bargude has executed the alleged sale-deed in

the capacity of Karta of Joint Family though it is the specific case of

Respondent/Plaintiff that she is the sole owner of the suit property.

She has laid evidence to that effect and then at this stage allowing the

Petitioner/Defendant to introduce the case that it was Barkya Baba

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Bargude, who was Karta of Joint Family and in that capacity he has

executed the sale-deed of the suit property, is as good as to make out

new case and causing grave prejudice to the Respondents/Plaintiffs.

Therefore, on this count also, no ground is made out to introduce such

amendment.

11] The trial Court has, therefore, after giving proper

reasoning and valid ground rejected the Petitioner's application. The

impugned order of the trial Court being just, legal and correct; no

interference is warranted therein. Writ Petition, therefore, being

without merits, stands dismissed.

12]                    Rule stands discharged.



                                               [DR.SHALINI PHANSALKAR-JOSHI, J.]