Bombay High Court

Balkrishna Somnath Lahoti vs Kusum Vishnudas Baheti And Others on 2 August, 2021

Bench: M. G. Sewlikar

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD
                  WRIT PETITION NO. 3631 OF 2018

Balkrishna s/o Somnath Lahoti
age 55 years, Occ. Agril. & Business
R/o Subhash Chowk, Nandurbar,
Dist. Nandurbar                                              Petitioner

       Versus

1.     Sau. Kusum Vishnudas Baheti
       R/o C/o Dr. Vishnudas Baheti
       Prathmik Rogya Kendra, Adavad
       Taluka Chopada, Dist. Jalgaon.

2.     Ratilal s/o Somnath Lahoti
       (Deceased through Lrs)

       2A       Shashi s/o Ratilal Lahoti
                (Deceased through Lrs)

       2AI      Smt. Ekta w/o Shashi Lahoti
                Age 39 years, occ. Household
                R/o Koparli, Tq. & Dsit. Nandurbar

       2AII Govind S/o Shashi Lahoti
            Age 19 years, occ. Education
            R/o as above.

       2AIII Mahesh s/o Shashi Lahoti
             Age 17 years, occ. Education
             R/o as above.

       2B       Sou. Vidhya Dinesh Baheti
                age 38 years, Occ. Computer
                R/o Murtiapur, Dist. Akola

       2C       Sou. Sunita Pavin Karwa
                Age 30 years, occ. Household
                R/o Jawahar Gate, Dist. Amravati
       2D       Sou. Shobha Gaurav Dangara




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                Age 28 years, Occ. Household
                R/o Katol, Dist. Nagpur

3.     Suresh s/o Somnath Lahoti
       Age 51 years, occ. Agril & Business
       R/o as above.

4.     Rajendra S/o Somnath Lahoti
       Occ. Agril & Business
       R/o as above.

5.     Sau Pushpa Viaykumar Gandhi
       Occ. Household
       R/o C/o Vithaldas Gandhi
       Thandipawani, Tq.Narkhed
       Dist. Nagpur.

6.     Sau. Chitra Pravinkumar Mal
       Occ. Household
       R/o C/o Pravinkumar Mal
       Jarato, Tq. Abdasa
       Dist. Kachhabhuj 370640

7.     Ashishkumar s/o Balkrishna Lahoti
       Occ. Education
       R/o Subhash Chowk, Nandurbar
       Tq. & Dist. Nandurbar

8.     Sharda Balkrishna Lahoti
       (Deceased through Lrs)

       8A       Balkrishna Somnath Lahoti
                (the petitioner hereinabove)

       8B       Ashishkumar Balkrishna Lahoti
                (respondent No. 7 hereinabove)

       8C       Vrushali Balkrishna Lahoit
                R/o Subhash Chowk, Nandurbar
                Tq. & Dist. Nandurbar.

9.     Ritaben Surendra Lahoti




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         Occ. Household
         R/o Vidhyavihar Colony, Koritroad
         Near Railway Station, Nandurbar
         District Nandurbar.                                Respondents

Mr. Aditya Sikchi, Advocate holding for Mr. S.R. Shah, Advocate for
the petitioner.
Mr. R.S. Wani, Advocate for respondent No. 1.

                                 CORAM : M.G. SEWLIKAR, J.

DATE : 2nd August, 2021.

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith.

2. By consent of the parties, heard fnally at admission

stage.

3. Respondent No. 1, who is the original plaintiff, fled

Special Civil Suit No. 10/1997 for partition and separate possession

of the properties City Survey No. 2954/1 B admeasuring 94.81 Sq.

Mtrs., City Survey No. 763/8/2 admeasuring 0.9 Sq. Mtrs., City

Survey No. 769/2 admeasuring 5.3 Sq. Mtrs. And City Survey No.

2975 admeasuring 12300 Sq. Mtrs. It is contended that all these

properties are the ancestral properties of plaintiff (respondent No. 1

herein) and respondents No. 1 to 9. Petitioner and respondents No. 1

to 9 are the brothers.

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4. Petitioner fled written statement in the record of the trial

Court in which petitioner denied that all the properties are the

ancestral properties. He contended that some properties out of the

suit properties are self-acquired properties of petitioner. This written

statement was fled on 9th July, 1997.

5. Petitioner (original defendant No. 2) fled application

seeking amendment at Exhibit 270 on the record of the trial Court

contending therein that suit property Survey No. 769/2 admeasuring

9 Sq. Mtrs., City Survey No. 769/2 admeasuring 85.3 Sq. Mtrs., Gat

No.189 admesuring 6 H 20 Ares and Gat No. 169 admesuring 9 H 27

Ares are the properties bequeathed to him by his father late Somnath

Lahoti. It is further contended in the application Exhibit 270 that

Gat Nos. 32/1, 32/2, 32/3 were owned by Balkrishna Somnath

Lahoti. However, in consolidation these properties came to be

recorded in the name of Ratilal Somnath Lahoti- deceased defendant

No. 1. Said Ratilal sold these properties during his lifetime. It is

further contended that Gat No. 33 situated at village Amalde was a

joint family property in which petitioner (defendant No. 2) had

undivided share. This land has also been sold by deceased

respondent No.2. He, therefore, prayed for deleting these properties

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from the suit.

6. Plaintiff fled his say to the application at Exhibit 272 in

the record of the trial Court. He denied all the contentions made in

the application for amendment. It was contended in the say that

respondent No. 1 (plaintiff) has tendered affdavit in lieu of

examination-in-chief. To avoid cross-examination of plaintiff, the

petitioner has fled this application for amendment with malafde

intention of stalling the progress of the suit. He, therefore, prayed for

rejection of the application.

7. Learned trial Court, after hearing all the parties,

dismissed the application holding that trial of the suit has

commenced as plaintiff (respondent No. 1) fled affdavit in lieu of

examination-in-chief. Learned trial Court, therefore, rejected the

application for amendment vide order dated 26 th September, 2017.

This order is impugned in this writ petition.

8. Shri Sikchi, learned counsel for the petitioner submitted

that amended proviso to Order VI Rule 17 of the Code of Civil

Procedure is not applicable to the suits which were instituted before

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this proviso was brought on the Statute book. He submitted that the

proviso of Order VI Rule 17 of the Code of Civil Procedure came on

the Statute book in the year 2002 whereas the present suit was fled

in the year 1997. Therefore, this proviso cannot be made applicable

to the pending suit. For this he placed reliance on the case of Sumita

Pradipkumar Dixit vs. Pushpadevi G. Makharia and others reported

in 2011(3) Mh.L.J. 755. He further submitted that petitioner has

already taken a defence in the written statement that some of the

properties are ancestral properties and some properties are self-

acquired properties. He submitted that the amendment which he

has sought is explanatory in nature. He is only amplifying the plea

which he has already raised in the written statement. Therefore,

nothing new is being brought on record nor it will amount to change

of defence. He further submitted that so far as amendment as

regards the properties are concerned, there is reference in the plaint.

Therefore, this will not amount to change in defence of defendant No.

2-petitioner herein. He further submitted that the amendment as

regards Gat No. 33 is concerned, he is doing the job of plaintiff.

Instead of consenting to the amendment, plaintiff is opposing the

amendment. He placed reliance on the cases of B.K. Narayana Pillai

vs. Paramesharan Pillai and another reported in (2000) 1 Supreme

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Court Cases 712, Sampath Kumar vs. Ayyakannu and another

reported in (2002) 7 Supreme Court Cases 559, Baldev Singh and

others vs. Manohar Singh and another reported in (2006) 6 Supreme

Court Cases 498.

9. Shri Wani, learned counsel for respondent No. 1

vehemently opposed the application for amendment contending that

petitioner No. 1 committed inordinate delay in preferring the

application for amendment. He submitted that the suit was fled in

the year 1997 and amendment application came to be fled in the

year 2017 i.e. after lapse of 20 years. This humongous delay of 20

years itself is suffcient to reject the application for amendment. He

further submitted that Somnath Lahoti - father of petitioner and

respondents, died in the year 1984. Petitioner was well aware of

existence of will. Still in the written statement, he did not raise this

plea. He has raised this plea after lapse of 20 years for which no

explanation is forthcoming. He further submitted that petitioner has

admitted that this property was ancestral property and in the later

part of the written statement he has specifcally stated that the

property Gat No. 2975 is self-acquired property. Therefore, this

clearly shows that he wants to withdraw the admission, which is not

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permissible. He further submitted that so far as amendment as

regards other properties is concerned, it was completely unnecessary

as reference of it has already come in the plaint. Therefore, just to

prolong the suit, the petitioner has fled this amendment application.

Amendment application lacks necessary details. It only says that the

property was sold by the deceased defendant No. 1. No details as

regards date and name of purchaser are given. Therefore, he prayed

for rejection of the application. He placed reliance on the cases of

Shrimoni Gurudwara Committee vs. Jaswant Singh reported in

(1996) 11 Supreme Court Cases 690, Heeralal vs. Kalyan Mal and

others reported in (1998) 1 Supreme Court Cases 278, Vidyabai and

others vs. Padmalatha and another reported in (2009)2 Supreme

Court Cases 409 and Sai Shradha Developers, Sangamner vs.

Ravindra Ganpatrao Bharitkar and others reported in 2012(6)

Mh.L.J. 348.

10. So far as amendment as regards will is concerned,

defendant has contended that Survey No. 769/2, Gat No. 189, Gat

No. 188 have been bequeathed to him by his father by executing will.

Question that arises is whether by this amendment, petitioner wants

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to withdraw any admission made in the written statement. It was

contended that petitioner has admitted in the written statement that

these properties are ancestral properties. Petitioner has no where

admitted that suit properties are ancestral properties. In the written

statement, the petitioner has contended that some of the properties

are ancestral and some are self-acquired properties. This does not

amount to admission that suit properties are ancestral properties.

By this amendment, petitioner is simply clarifying that these

properties are self-acquired properties as they were bequeathed to

him by will executed by his father. If the defendant is amplifying the

plea already raised, it will not amount to withdrawal of admission.

Petitioner has nowhere admitted in the written statement that these

properties are ancestral properties. Therefore, the question of

withdrawal of admission will not arise.

11. The second part of application for amendment is as

regards the properties Gat No. 32/1, 32/2, 32/3. Petitioner has

contended that these properties were sold by Balkrushna Lahoti. If

the averments in the plaint are perused, it is explicit that respondent

No. 1 has also contended that these properties were sold by

petitioner. Therefore, petitioner is not bringing any new fact on the

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record. Petitioner is also seeking amendment as regards suit

property Gat No. 33. Petitioner has contended in the amendment

application that Gat No. 33 has been sold by deceased respondent

No. 2. It is true that to whom this property is sold is not clear from

the amendment. However, this being the subsequent event which

has happened during the pendency of the suit and for avoiding

multiplicity of proceedings, it will be in the interest of both the

parties to allow amendment in this respect.

12. Learned counsel Shri Wani submitted that respondent

No. 1 has fled affdavit in lieu of examination-in-chief in the trial

Court. Therefore, trial has begun and in terms of proviso to Order VI

Rule 17 of the Code of Civil Procedure, amendment is not permissible

unless petitioner proves that inspite of due diligence he could not

bring these facts on record at the time of fling of the written

statement. He submitted that application for amendment is

conspicuously silent about this aspect of the matter. He submitted

that therefore, this amendment deserves to be rejected on this

ground alone.

13. This submission, I am afraid, cannot be accepted. In the

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case of Sumita Pradipkumar Dixit (supra), relying on the Supreme

Court judgments in the matter of State of Hyderabad vs. Town

Municipal Council reported in (2007) 1 SCC 765 and Sumesh Singh

vs. Phoolan Devi and others reported in 2009(12) SCC 689, this

Court held that proviso to Order VI Rule 17 of the Code of Civil

Procedure does not apply to the proceedings which were instituted

prior to enforcement of proviso to Order VI Rule 17. It has been

observed thus :

"16. In my considered view the narrow interpretation as sought to be placed by the learned counsel for the respondents on the provisions of section 16 that only the pleadings are saved from the amended provisions of Order 6, Rule 17, would not be in tune with the principles of interpretation and intention of the legislature. As has been discussed hereinabove since what is saved under clause (b) is "without prejudice to the generality of the provisions of Section 6 of General Clauses Act, 1897", what has been stated in clause (b) will have to be construed as only illustrative and it cannot be construed in a manner which will restrict the width of what has been generally saved under clause 6 of the General Clauses Act, 1897. As has been held by the Apex Court, rights and the liabilities of the parties would be crystalised on the date of institution of the suit and as such in view of provisions of Section 6 of General Clauses Act and specifcally clause (c) thereof, the pending proceedings would be saved unless the Legislature specifcally intends otherwise. In my considered view upon harmonious construction of Section 16 of Amendment Act, 2002 with Section 6 of the General Clauses Act, it cannot be said that the legislature has intended to give a narrow meaning to save only pleadings and not the proceedings. As held by the Apex Court in the case of Ambalal Sarabhai

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Enterprises Ltd., (supra) it will have to be held that pending proceedings on the date on which Amending Act came into effect are to be continued as if the Statute has not been repelled.

17. Insofar as the judgments of the learned Single Judges of this Court on which the learned counsel places reliance are concerned the same do not take into consideration the words "without prejudice to the generality of provisions of Section 6 of the General Clauses Act, 1897" and also judgment of the Apex Court in the cases of State of Hyderabad and Someshsingh (supra) and therefore will have to be held as not lying down correct position of law.

18. Insofar as the judgment of the learned Single Judge of this Court in the case of Badrinarayan Bansilal Somani (supra) is concerned, the same would not be applicable to the facts in the present case inasmuch as in the said case written statement infact was fled prior to 1-7-2002.

19. Insofar as various cases of the Apex Court on which the learned counsel for the respondent relies are concerned, there can be no quarrel that when the words used in the Statute are capable of giving their meaning by strict or liberal interpretation no other principle of interpretation is to be adopted. However, as already discussed hereinbove the harmonius construction of Section 16 of the Amendment Act read with Section 6 of the General Clauses At, 1897, would clearly make out the intention of the Legislature that amended provisions are not intended to be made applicable to the suits fled prior to 1-7-2002.

20. Considering the merits of the matter, it can be seen that apart from rejecting the application on the ground of applicability of provisions of Order 6 Rule 17 of Civil Procedure Code, the learned Judge has found that the amendment was not necessary inasmuch as the averments which are sought to be put on record were already raised in the written statement.

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From these observations, it is clear that amendment

made by the Code of Civil Procedure (Amendment Act, 2002) shall

apply only in respect of suits which were fled thereafter. In the case

at hand, suit was fled in the year 1997. This clearly shows that suit

was fled prior to enforcement of Amendment Act, 2002. Therefore,

the question whether amendment application can be permitted after

trial begins does not arise.

14. So far as delay is concerned, learned counsel Shri Wani

placed reliance on the case of Shrimoni Gurdwara Committee

(supra). In this case, amendment application was moved by the

defendant after the parties had adduced evidence and the matter was

to be argued. In the case at hand, this is not the factual situation.

Delay cannot be measured on the basis of the years that have passed

after institution of the suit but it is to be measured in terms of the

stage of the suit. In the case of Sampath Kumar (supra) same

question had fallen for consideration before the Honourable Supreme

Court. The Honourable Supreme Court has observed thus :-

"9. Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy

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between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment."

From these observations of the Honourable Supreme

Court, it is clear that mere delay cannot be a ground for refusing

prayer of amedment. In the case at hand, respondent No. 1 has to

share some portion of the blame for the delay. The suit was fled in

the year 1997. Written statement was fled on 9 th July, 1997. Issues

were framed. Affdavit in lieu of examination-in-chief was tendered

on 23rd September, 2008. Respondent No. 1 did not adduce any

evidence nor she offered herself for cross-examination as a result of

which, the suit came to be dismissed on 29th July, 2011. It came to

be restored on 10th June, 2016 and application for amendment was

fled on 9th March, 2017. This clearly shows that the suit has not

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