Deorao Bajirao Thorat Died Thr His ... vs Vikram Dagdoba Padwal And Others
2021 Latest Caselaw 715 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD


                         WRIT PETITION NO. 6325 OF 2020


1.   Deorao Bajirao Thorat
     (Died) Through his L.Rs.

1/1. Hanumant Deorao Thorat
     Age: 50 years, Occu.: Agriculture,
     R/o Daudpur, Tq. Osmanabad,
     Dist. Osmanabad
     General Power of Holder of
     Petitioners No.1/2 to 1/5

1/2. Pandurange Manik Thorat
     Age: 25 years, Occu.: Agri.,
     R/o As above

1/3. Parwatibai Pandurang Hande
     Age: 60 years, Occu.: Household,
     R/o As above

1/4. Taramati @ Laxmibai Ganpat Dhayagude
     Age: 58 years, Occu.: Household,
     R/o As above

1/5. Hirakanabai Nagurao Thavare
     Age: 56 years, Occu.: Household,
     R/o As above

1/6. Wanmala Manik Thorat - Died

1/7. Jijabai Devrao Thorat - Died                      ..PETITIONERS

      VERSUS

1. Vikram Dagdoba Padwal
   Age: 53 years, Occu.: Agri.,
   R/o Upala (Makdache), Tq. Osmanabad,
   Dist. Osmanabad


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2.   Vasantrao Rangrao Ingale
     (Died) Through his L.Rs.

2/1. Vimal Vasantrao Ingale
     Age: 72 years, Occu.: Household,
     R/o Kangara, Tq. Osmanabad,
     Dist. Osmanabad

2/2. Rajendra Vasantrao Ingale
     Age: 51 years, Occu.: Agri.,
     R/o As above

2/3. Jayant Vasantrao Ingale
     Age: 49 years, Occu.: Agri.,
     R/o As above

2/4. Sanjay Vasantrao Ingale
     Age: 53 years, Occu.: Agri.,
     R/o As above

3.   Narayanrao Abarao Shendage
     Age: 55 years, Occu.: Agri.,
     R/o Daudpur, Tq. Osmanabad,
     Dist. Osmanabad
     (The suit is already withdrawn as per
     order in Exh.291)

4.   Dadarao Pandurange Thorat
     Age: 56 years, Occu.: Labour,
     R/o As above
     (The suit is already withdrawn as per
     order in Exh.296)                                  ..RESPONDENTS


                                    ....
Mr. S.G. Chapalgaonkar, Advocate for petitioners
Mr. V.D. Salunke, Advocate h/f Mr. P.K. Deshmukh, Advocate for respondent
nos. 2/1 to 2/4
                                    ....


                                             CORAM : R.G. AVACHAT, J.

DATED : 13th JANUARY, 2021

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ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard learned counsel for

the parties finally, by consent.

2. The challenge in this writ petition is to order dated 24 th June,

2020 passed by 2nd Joint Civil Judge, Senior Division, Osmanabad rejecting

application Exh. 273 moved for amendment of the plaint in Regular Civil Suit

No. 98 of 1975 .

3. The petitioners are legal representatives of the original plaintiff.

The suit has been filed for injunction simpliciter. The petitioners/plaintiffs

claim possession over the properties in the suit as tenants. The trial Court

had, therefore, framed issue of tenancy and referred it for adjudication by the

tenancy authority. The issue of tenancy has now been finally answered

negativing the claim of the petitioners/plaintiffs.

4. The petitioners/plaintiffs sought for introduction of the following

matter in the plaint :-

1) gs dh] lnj izdj.kkr iku ua- 2 oj iWjk ua- 1 e/;s ykbZu ua- 4 e/khy herewith ;k "kCnkiq<s The defendant No.4 has admitted tenancy right and possession of plaintiff in R.C.S. No. 1/64 Devrao V/s Dadarao and C.J.S.D. Osmanabad has given permenant injunction in favour of plaintiff against defendant Dadarao - original land owner. The

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Tahsildar at Osmanabad also admitted that the defendant No.3 had not in possession of the suit land and confirm the mutation entry of plaintiff in 7/12 extract in cultivation column of Sy.No. 16/3 & 16/4 which is converted into land Gat No.90. The plaintiff has long standing possession over the suit land gs VkbZi gks.ks vko";d gksrs- ijarw VkbZijk;VjP;k utjpqdhus ojhy etdwj VkbZi dj.;kps jkgwu xsys vkgs-

According to the petitioners, the above said matter was remained

to be introduced in the plaint due to typewriter's mistake.

5. The contesting respondents resisted the application on the ground

of long delay. According to them, the proposed amendment could have been

made earlier. The hearing in the suit as now commenced. With a view to

protract hearing of the suit, the application for amendment of the plaint has

been moved. Since the issue of tenancy has attained finality, the proposed

amendment could not be allowed.

6. The trial Court rejected the application observing that there is

delay of little over forty five years in moving the application for amendment

of the plaint. The contention of the petitioners that it was the mistake of

typewriter, could not be digested. The proposed amendment is not at all

necessary when the petitioners' claim of tenancy has now attained finality. If

the application is allowed, it will amount to reopening of issue of tenancy.

Recording of evidence has now commenced.

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7. The reasons given by the trial Court for rejecting the application

have been reiterated by the learned counsel representing the contesting

respondents herein. He would further submit that after rejection of the

application for amendment, another application with same contentions and

prayers has been moved before the trial Court. It is nothing but an abuse of

process of Court. According to learned counsel, the decree and the

documents wherein the landlord (Defendant No.4) has allegedly admitted

petitioners' possession are not before this court. The Court proceeding is a

matter of record. Those could be produced before the trial Court without

seeking an amendment in the plaint. With a view to delay the hearing of the

suit, the application was moved. Regular Civil Suit No. 1 of 1964 was a

collusive suit. On the day on which it was filed, the same was compromised.

The petitioners could have very well moved an application for amendment of

the plaint at the earliest. The trial Court has rightly rejected the application.

No interference therewith is called for.

8. True, the suit is of 1975. The application for amendment has been

moved after forty five year of filing of the said suit. The fact is, however, that

the said suit was on sine die list since the issue of tenancy has been referred

to the tenancy authorities for finding thereon. It is only in December 2019

the finding of the said issue has attained finality. Literally, the suit has been

revived just a year before. Learned counsel for the petitioners admit that

even if the proposed amendment is allowed, the issue of tenancy will not be

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revived. Since the suit dates back to 1975, proviso introduced to Rule 17 to

Order VI of the Civil Procedure Code by way of amendment of 2002 has no

application. The petitioners want to prove the fact that possession of their

father had been admitted by the landlord (Defendant No.4) in a proceeding.

It needs no mention that admission has to be proved like any other fact. To

produce an evidence in proof of fact, there has to be foundation in the

pleadings. The alleged admission is said to have been made in the Court

proceeding. As such, it is a matter of record. Copy thereof is not before this

Court. The petitioner will have to produce the same before the trial Court.

9. It needs no mention that Court may, at any stage of the

proceeding, allow either party to alter or amend its pleadings. If the

proposed amendment is allowed, nature of suit is not going to be altered. It

is reiterated that on allowing the application, no issue of tenancy can be

revived. In my view, the trial Court was impressed by the fact that there is

delay of forty five years in moving an application for amendment and if the

same is allowed, it will revive the claim of tenancy. It is reiterated that the

suit was on sine die list until December 2019. The proceeding in the suit

before the trial Court commenced only after the decision in Writ Petition No.

211 of 2006, whereby findings on tenancy issue attained finality. As such,

there is no delay in moving the application for amendment of the plaint. For

just decision of the suit, the proposed amendment appears to be necessary.

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The trial Court should have allowed the same. Since the application has been

rejected by the trial Court, interference is called for with the impugned order.

10. The petitioners are required to be saddled with heavy cost of

Rupees Ten Thousand since after the impugned order has been challenged in

this writ petition, they have again moved similar application before the trial

Court.

11. For the reasons hereinabove, writ petition is allowed in terms of

following order :-

ORDER

(I) Order dated 24th June, 2020 passed by 2nd Joint Civil Judge, Senior Division, Osmanabad rejecting application Exh. 273 in Regular Civil Suit No. 98 of 1975 is hereby set aside.

              (II)           Application Exh. 274 is allowed.


              (III)          The petitioners to pay the contesting respondents

Rupees Ten Thousand (Rs.10,000/-) towards cost.

              (IV)           The cost be paid before the trial Court.


              (V)            Rule is made absolute.



                                                    ( R.G. AVACHAT, J. )
SSD


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