Murlidhar Sonba Andhalkar And Ors vs Pralhad Ramchandra Jadhav ...
2021 Latest Caselaw 1819 Bom

                                                                         (2) WPST-96123-20.doc

BDP-SPS


 Bharat

                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 D.
 Pandit
Digitally signed



                                       CIVIL APPELLATE JURISDICTION
by Bharat D.
Pandit
Date: 2021.01.28
15:50:57 +0530




                                    WRIT PETITION (ST) NO. 96123 OF 2020

                   Murlidhar Sonba Andhalkar and Ors.                     ..... Petitioners.
                              V/s
                   Pralhad Ramchandra Jadhav
                   (deceased through his legal heirs)
                   1A. Pratibha Pralhad Jadhav and Ors.                   ...... Respondents.

                   Mr. Nikhil Wadikar i/b Mr. Nandu Pawar for the Petitioner.
                   Mr. Kuldeep Nikam for the Respondents.


                                        CORAM: NITIN W. SAMBRE, J.

                                        DATE:     JANUARY 28, 2021
                   P.C.:-

                   1]       This Petition is by the original Plaintiffs who have preferred an

appeal questioning judgment and decree passed in Special Civil Suit

No. 343 of 1993 on 13/02/2012. The claim for specific performance

based on agreement of sale dated 14/11/1991 in relation to suit

property i.e. agricultural land, came to be rejected. However, earnest

money of Rs 1 lakh was directed to be returned by the legal heirs i.e.

Defendants. In the said appeal, application-Exhibit-70 came to be

moved by the Petitioners/Plaintiffs, seeking deletion of certain

pleadings from para 3 and also insertion, which has been rejected on

3/10/2020. As such, this Petition.

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2] Facts necessary for deciding this Petition are as under:-

3] The suit property consists of Survey No. 334/A/1A/3/1A/2

situated at Village Karanje, Taluka and District Satara. The said land

was admeasuring 1 Hectare 56 R, out of which 38 R land was non-

cultivable. According to the Petitioners, original Defendant Pralhad

entered into unregistered agreement of sale dated 14/11/1991 of the

land admeasuring 0 Hectare 18.55 R from out of aforesaid land after

accepting part consideration of Rs 1 lakh out of total consideration of

Rs 4,99,500/-. It is the case of the Petitioners/original Plaintiffs that

Defendant No.1 was in dire need of money for marriage of his

daughter and as such has agreed to sell the land by accepting

consideration.

4] The suit claim was dismissed to the extent of grant of specific

performance. However, the earnest money was directed to be

refunded to the Petitioners/Plaintiffs by the legal heirs of Defendant

No.1. Appeal came to be lodged being Regular Civil Appeal No.168 of

2012. In the said appeal, Petitioners have come out with Application-

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Exhibit-70 for deletion and addition of certain pleadings in para 3, as

deletion of pleadings was warranted in view of incorrect narration of

facts by the then lawyer and since it was not in tune with recitals in

the agreement dated 14/11/1991. As such, insertion by way of

amendment was also sought to that of deletion of pleadings based on

recitals in the agreement dated 14/11/1991. The said prayer came to

be rejected vide order impugned.

5] The submissions are, amendment no way changes nature of the

suit or has not taken the Respondents/Defendants by surprise,

particularly when suit claim is based on the agreement of sale dated

14/11/1991. Further submissions of learned Counsel for the

Petitioners/Plaintiffs are, for deciding real controversy in between the

parties, it is necessary to amend pleadings, as has been prayed so as to

demonstrate sale of necessity of part of the property inherited. The

learned Counsel then would urge that by granting amendment,

complete justice would be done to the parties and that being so order

passed below Exhibit-70 is liable to be quashed and set aside.

6] Per contra, the learned Counsel for Respondents/Defendants

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submits that the Petitioners/Plaintiffs have intentionally suppressed

execution of sale deed dated 13/8/1986 pertaining to the suit property

by deceased Ramchandra, father of Defendant No.1. According to

him, the deletion is with an intention to coverup the admissions in

support of which already evidence is led. The amendment is sought

at much belated stage without any justification. As such, learned

Counsel for the Respondents/Defendants sought dismissal of the

Petition.

7]    Considered rival submissions.



8]    The suit for specific performance is based on agreement of sale

dated 14/11/1991 which was initially initiated against Pralhad

Defendant No.1, who has expired and whose legal representatives are

brought on record in the suit being Special Civil Suit No.343 of 1993.

In the suit, having regard to the rival pleadings, if findings on Issue

Nos. 2 and 3 are appreciated, same appears to be indirectly touching

pleadings which are sought to be deleted. As such, indirectly,

Petitioners are seeking deletion of findings recorded based on the

pleadings which are sought to be amended by virtue of amendment

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application during pendency of appeal. The said pleadings remained

on record almost till date for last about 25 years and it is only by way

of afterthought, Petitioners are trying to delete the pleadings which

are not convenient to them and want to substitute the same by

improving their case. The learned Counsel for the Respondents has

rightly brought to the notice of this court about suppression of sale

deed executed by deceased Ramchandra, grant-father of Defendant in

favour of the Plaintiffs on 13/8/1986 pertaining to the suit property.

As such, succession to the property by original Defendant No.1 or

other Defendants was well within the knowledge of the Petitioners on

the date of filing of the suit as can be inferred from the aforesaid

transaction of 13/08/1986. Apart from above, it was never the case of

the Petitioners that deceased Pralhad has inherited the suit property

and as such, he can dispose of the undivided share. The aforesaid

reasons have prevailed upon the learned lower appellate court to

refuse the amendment as has been sought to be incorporated by

Exhibit-70. As such, it is apparent that the amendment is sought to be

incorporated after 25 years of initiation of suit proceedings. The

deletion and addition as is claimed in para 3 of the plaint by way of

amendment changes entire nature of the proceedings and that being

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so, the order impugned appears to be just and proper.

9] No case for interference is therefore made out. Petition fails and

same stands dismissed.

( NITIN W. SAMBRE, J. )