Bombay High Court
Bhimrao Laxman Kamble (Since ... vs Aannaso Dhondiram Manole And Anr on 15 January, 2018
Bench: Dr. Shalini Phansalkar-Joshi
3 WP 11141 of 2017.odt
vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11141 OF 2017
1. Bhimrao Laxman Kamble ]
(since deceased, through his Lrs ]
]
1(a) Sharada Bhimrao Kamble ]
age: 53 years, ]
]
1(b) Dr. Ravindra Bhimrao Kamble ]
Age: 35 years, ]
]
1(c) Rekha Vijesh Hosmani ] Petitioners
age: 33 years. ] Original
] Defendants.
1(d) Shanta Mahadev Bhachimani ]
age: 31 yrs. ]
]
1(e) Prema Nandkumar Kurhade ]
Age 25 Years ]
]
1(f) Anita Bhimrao Kamble ]
age: 23 yrs. ]
All residing at Mudhol, Dist.Bagalkot ]
Karnataka. ]
]
1(g) Nagendra Bhimrao Kamble ]
age: 27 years,Occn. Education, ]
residing on above address ]
(Power of Attorney Holder) ]
V/s.
1. Annaso Dhondiram Manole ]
age: 52 years,Occn.Agriculture ]
r/p R.V.No.1, H.No.390, Ichalkaranji ] Respondents
] Original
2. Mahadev Ramchandra Jagdade ] Plaintiffs.
1/14
::: Uploaded on - 20/01/2018 ::: Downloaded on - 21/01/2018 01:07:55 :::
3 WP 11141 of 2017.odt
age: 56 yrs, Occn.Agriculture ]
r/o R.V.No.9, H.No.1233 ]
Ichalkaranji ]
Mr. Rajesh S. Patil a/w Meet Sawant, for the
Petitioners.
Mr. Rajure V. Babwappa for the
Respondents.
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
DATE : 15 th JANUARY, 2018.
ORAL JUDGMENT :
1] Heard learned counsels for the petitioners and
respondents.
2] Rule.
3] Rule is made returnable forthwith with the consent of
parties and the petition is taken up for final hearing.
4] By this petition, filed under Article 227 of the Constitution
of India, the petitioners are challenging the order dated 30 th August,
2017, passed by 5th Joint Civil Judge, Junior Division, Ichalkarani,
thereby allowing the respondents' application filed under Order VI
rule 17 of Code of Civil Procedure, seeking permission to amend the
plaint .
3 WP 11141 of 2017.odt
5] The petitioners herein are the original defendants.
Respondents have filed a suit for declaration that they are the owners
of the suit property and also for injunction restraining the petitioners
from creating third party interests therein. The suit was filed on the
basis of an agreement of sale dated 18.5.1998, executed by the
petitioners in favour of respondents. A specific pleading was made in
the plaint that as the petitioners were creating third party rights in
the suit property, it has become necessary for the respondents to file
suit, seeking injunction and declaration over the suit property and
restraining the petitioners from creating third party interests
therein.
6] However, when the suit came up for hearing, it was
noticed by the respondents that the relief of specific performance of
the contract was not expressly asked for in the plaint and therefore,
they moved an application before the trial Court pointing out
technical infirmity in the suit and for seeking specific performance of
the agreement and consequential amendment was accordingly sought
in the plaint for adding the clause of valuation of the suit claim for the
payment of Court fees.
3 WP 11141 of 2017.odt
7] This application, however, came to be strongly resisted
by the petitioners, contending inter alia that the relief claimed by
proposed amendment is barred by Law of Limitation. It was
submitted that the suit was filed in the year 2000; whereas the
application for amendment is filed in the year 2017 i.e., after about 16
years and therefore, amendment sought is not only at a very belated
stage but even Proviso to Order VI rule 17 CPC would come into play,
as the trial of the suit has already commenced.
8] The trial Court was, however, after hearing learned
counsel for the parties, pleased to allow the amendment application,
by its impugned order, holding that the respondents are not
introducing any new case and in order to determine the real question
and controversy between the parties, proposed amendment is
necessary. The trial Court, further held that as still the evidence in
the suit is yet to be led, the petitioners will have an opportunity to
cross-examine the respondent, and hence no prejudice is going to be
caused to the petitioners. In order to compensate the petitioners for
the delay in allowing such amendment, the trial Court, accordingly
allowed the application with costs of Rs.1,000/-.
9] While challenging the impugned order passed by the trial
3 WP 11141 of 2017.odt
Court, the submission of learned counsel for the petitioners is that the
proposed amendment is expressly barred by the Proviso to Order VI
Rule 17 of CPC as the amendment is sought after the issues are
framed and the suit is fixed for recording of evidence. Secondly, it
was submitted that the said amendment is sought after a period of
about 16 years from the date of filing of the suit and no explanation,
worth the name, is given for such delay and on this count also, the
trial Court should have rejected the same. Thirdly, it is submitted that
by the proposed amendment, respondents want to add time a barred
claim and therefore, such application for amendment should have
been rejected as it is definitely going to cause prejudice to the
petitioners.
10] Per contra, learned counsel for respondents has
supported the impugned order by pointing out that the cause of action
for filing the suit was the execution of said agreement and it was
sufficiently pleaded in the plaint. Hence proposed amendment does
not introduce any new case. The proposed amendment is also
necessary for deciding the real controversy between the parties and
to avoid multiplicity of suits. Secondly, it is submitted that the Proviso
to Order VI rule 17 of CPC cannot have application to the present case
as the suit was filed much prior to the said Proviso was introduced to
3 WP 11141 of 2017.odt
Order VI Rule 17 CPC, by way of amendment in C.P.C. Further, it is
submitted by learned counsel for respondents that the issue of
limitation has to be decided at the time of trial. Hence to achieve the
substantive cause of justice, this Court should maintain the order of
the trial Court, without interfering in the same.
11] Learned counsel for both the parties have relied upon
various judgments of this Court and the Apex Court to substantiate
their rival submissions.
12] As the application for amendment has to be decided in the
factual matrix of the case, the facts of present case sufficiently
disclose that in the plaint the respondents have categorically relied
upon the agreement of sale dated 18.5.1998 and how despite the said
agreement, the petitioners were trying to create third party interest
in the suit land and therefore, it was necessary for the respondents to
file the suit for declaration of their ownership and the possession
over the suit property and for the relief of injunction.
13] The perusal of plaint, thus, makes it clear that
respondents have very much relied on this agreement of sale and
their right over the suit property on the basis of the said agreement;
3 WP 11141 of 2017.odt
making it obvious that there was no intention on their part to give
up or omit in any way the claim for specific performance of the
contract. On the contrary, indirectly and implicitly, they had asked
for specific performance of the contract itself, as they were seeking
the relief of declaration of ownership and possession over the suit
land. Thus, the claim sought by the amendment is substantially in
tune with the averments in the plaint, on which relief is based.
Therefore, as held by the Division bench of this Court, in Shaikh
Iliyas s/o Shaikh Dada and anr -vs- Ganpat s/o Mahtarji
Shirisath, [2016 (1) Mh. L.J. 124] if since beginning the intention
of the respondents was to get the specific performance of the
agreement, then merely because due to inadvertence, that relief was
not expressly claimed in the plaint, the respondents cannot be barred
from seeking that relief by way of amendment in the plaint,
especially when such relief is necessary to be considered to resolve
the real controversy between the parties and for avoiding multiplicity
of proceedings. As per the settled position of law also, the approach
of the Court has to be liberal while considering the application for
amendment in the pleading.
14] As regards the grievance of the learned counsel for the
petitioners that the proposed amendment is barred in view of Proviso
3 WP 11141 of 2017.odt
to Order VI Rule 17 CPC, learned counsel for respondents has relied
upon the judgments of this Court in case of Mohan Maluram
Agrawal -vs- Kaladevi wd/o Sawarmal Agrawal and anr, 2007
(2) Mh. L.J. 74, Badrinarayan Bansilal Somani -vs-
Vinodkumar K. Shah, [2003 (2) Mh. LJ. 120] and judgment of
the Hon'ble Supreme Court in State Bank of Hyderabad -vs- Town
Municipal Council [(2007) 1 SCC 765], categorically holding that
the amendment in C.P.C., by which Proviso to Order VI Rule 17 is
introduced has no application when the suit has been filed prior to
said Amendment in C.P.C. came into effect. In the instant case,
admittedly the suit is filed prior to amendment is made in Civil
Procedure Code for inserting Proviso to Order VI, Rule 17 CPC.
Therefore, that Proviso cannot have any application.
15] Even if the said Proviso is held applicable, in view of the
judgment of the Apex Court in the case of Abdul Rehman and
another -vs- Mohd. Ruldu and ors [(2012) 11 SC 341], when
amendment is sought making clear and explicit what was already
implicit in plaint and if the nature of suit does not change by way of
proposed amendment, then despite the bar of Proviso to Order VI
Rule 17 CPC, such amendment needs to be allowed. It was held that if
necessary factual basis for amendment is already contained in the
3 WP 11141 of 2017.odt
plaint, the relief sought on the said basis would not change the nature
of the suit. In paragraph No.18 of the judgment, it was further
observed that:-
"We reiterate that all amendments which are necessary for
the purpose of determining the real questions in
controversy between the parties should be allowed if it does
not change the basic nature of the suit. A change in the
nature of relief claimed shall not be considered as a change
in the nature of suit and the power of amendment should be
exercised in the larger interests of doing full and complete
justice between the parties."
16] Furthermore, it was held that if the proposed amendment
to include relief of declaration of title, in addition to the relief of
permanent injunction which was claimed in unamended plaint, is to
protect plaintiffs' interest and not to change basic nature of the suit,
as alleged, hence the bar Proviso to Order VI Rule 17 cannot come
into play.
17] In the instant case the entire factual matrix of the relief
sought for, the proposed amendment had already been set out in the
plaint. It is also not in dispute that relief sought by way of
amendment could have also been claimed by the respondents by way
of a separate suit and in such circumstances as the amendment
3 WP 11141 of 2017.odt
necessary for the purpose of determining the real question of
controversy between the parties and as it does not change the basic
nature of the suit, it is rightly allowed by the trial court.
18] The submission of learned counsel for the Petitioners is
that even if the Proviso to Order VI rule 17 CPC has no application,
the fact remains that the amendment in the plaint is sought 16 years
after filing of the suit and relief sought by the proposed amendment is
apparently barred by limitation. Moreover no sufficient explanation
is given in the application as to why amendment was not sought at
the earlier stage. In support of his submission, learned counsel for
the petitioners has relied upon the judgment of the Apex Court in
case of Shiv Gopal Shah @ Shiv Gopal Sahu -vs- Sita Ram
Saraugi and ors, [2007 AIR (SC) 1478], wherein the amendment,
sought of the similar nature, to seek specific performance of the
contract, came to be rejected on the ground that there was
substantial delay and no explanation was offered for substantial
delay. It was held that, this negligence and complacency on the part of
the plaintiffs would not permit them to amend plaint, more
particularly when the claim is apparently time barred. It was further
held that if the amendment application is sadly silent regarding
explanation as to why such amendment was not sought for a longer
3 WP 11141 of 2017.odt
period, the trial Court and the Appellate Court should not have
allowed such application.
19] However, from the perusal of the said judgment, it is clear
that the said observations were made in particular facts of that case
as the plaintiffs therein were held responsible for the conduct of
blowing hot and cold and of approbation and reprobation, as there
was clear assertion in the plaint that agreement stood cancelled and
respondent also asserted title over the land in question. Hence it was
held that 7 years thereafter by way of amendment in the plaint,
plaintiff cannot claim relief of specific performance of such
agreement. This judgment, therefore, cannot be of any assistance to
the petitioners as in this, respondents have never given up, omitted
or relinquished their right to claim specific performance of the
agreement. Conversely, it was implicit in the plaint.
20] Learned counsel for the petitioners has then relied upon
the judgment of Apex Court in case of Revajeetu Builders and
Develolpers -vs- Narayanaswamy & Sons & ors [2009 (6) All
M.R.986], wherein having regard to the fact that the amendment
was changing the entire nature of the suit, the amendment was
rejected. Hence this judgment also cannot be of any assistance to the
3 WP 11141 of 2017.odt
petitioners.
21] Reliance placed by learned counsel for petitioners on the
judgment of Apex Court in Van Vibhag Karmchari Griha Nirman
Sahkari Sanstha Maryadit (regd) -vs- Ramesh Chander & ors,
[2011 AIR (SC) 41], is also misplaced as in that case the
amendment came to be rejected as it was found that original plaintiff,
as also the subsequent purchasers remained complacent and
negligent all through a period of more than 15 years and woke up for
the first time to challenge the sale deed dated 12.10.1985 by seeking
a declaration that it is bogus and did not create any tittle in favour of
the original defendant. No explanation for such a towering delay was
offered. Plaintiffs were earlier given such opportunity for amendment
but they did not avail. Hence as such amendment application also
lacked bonafides on the part of the plaintiffs, it came to be rejected.
22] According to learned counsel for the petitioners,
consistent view of the Apex Court, as laid down in Revajeetu
Builders & Developers -vs- Narayanaswamy & Sons and ors
(supra), is that the Court has to take into consideration the
important factors laid down therein while deciding the application for
amendment and some of those factors are, "Whether the proposed
3 WP 11141 of 2017.odt
amendment constitutionally or fundamentally changes the nature
and character of the case?", and "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" . It is urged that as
both these factors go in favour of the petitioners and not in favour of
the respondents, the impugned order passed by the trial Court cannot
be sustained in law.
23] As regards the first factor, in this case it is already held
that the proposed amendment does not change the nature of the suit
and as held in the judgments on which learned counsel for the
respondents has relied upon, such amendment, if found necessary to
resolve the controversy between the parties, even if sought at belated
stage, it can be allowed, keeping open the point of limitation, to be
decided at the time of final hearing.
24] Here in the case, therefore, even if the amendment is
sought at a belated stage, the point of limitation, as per settled
position of law, is required to be kept open to be decided at the time of
hearing of the suit, especially having regard to the fact that the suit is
already fixed for hearing. Hence, it would be in the interest of both
parties that this issue be decided at the time of trial, in order to
3 WP 11141 of 2017.odt
resolve the controversy between the parties.
25] Accordingly the impugned order, therefore, passed by the
trial Court, does not call for interference. The Writ Petition stands
dismissed with a direction that the trial Court shall specifically frame
the issue as to, "Whether the relief for specific performance of the
agreement, as now sought by way of amendment of the plaint, is
barred by limitation?". Trial Court shall decide the said issue on the
basis of evidence that may be brought before it. The question
whether this amendment relates back to date of filing of the suit is
also kept open.
26] Keeping all the contentions of both the parties, expressly
open writ petition stands disposed off.
27] Rule discharged in above terms.
[DR.SHALINI PHANSALKAR-JOSHI, J.]
