Farzana Begum W/O Mirza Shabir ... vs Bhartiya Vaidyak Samanvay ...
2021 Latest Caselaw 9416 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR.

                    WRIT PETITION NO. 3395 OF 2020


 PETITIONERS :-                1. Smt. Farzana Begum W/o Mirza Shabir
                                  Baig, Aged about 49 years, Occu.:
                                  Household, R/o Mata Mandir Galli, Killa
                                  Road, Mahal, Nagpur-32.

                               2. Shri Anwar Baig S/o Mirza Yusuf Baig,
                                  Aged about 59 years, Occu.: Business,
                                  R/o Killa Gate, Mahal, Nagpur-32.

                               3. Shri Sabir Baig s/o Basir Baig,
                                  (Mentioned as Shadique Baig by plaintifff
                                  in Plaint and Appeal Memo), Aged about
                                  54 years, Occu.: Business, R/o Mata
                                  Mandir Galli, Killa Road, Mahal, Nagpur-
                                  32.

                               4. Shri Wahid s/o Mirza Yusuf Baig, Aged
                                  about 45 years, Occu.: Business, R/o Killa
                                  Gate, Mahal, Nagpur-32.

                               5. Shri Shahid Baig s/o Mirza Yusuf Baig,
                                  Aged about 45 years, Occu.: Business,
                                  R/o Killa Gate, Mahal, Nagpur-32.
                                  (Original Defendans as per R.A.)

                                    ...VERSUS...

 RESPONDENT :-                    Bhartiya Vaidyak Samanvay Samiti, C/o
                                  Shri      Ayurved       Mahavidyalaya
                                  Dhanwantari Marg, Hanuman Nagar,
                                  Nagpur-440009, through its Secretary,
                                  Dr.Govind Prasad Upadhaya s/o Madhav
                                  Prasad Upadhaya, aged 65 years.
                                  (Original Plaintiff as per R.A.)

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 -------------------------------------------------------------------------------------------
                Mr. S.M.Bhangde, counsel for the petitioners.
                Mr. P. D. Sharma, counsel for the respondent.
 -------------------------------------------------------------------------------------------

                                   CORAM : MANISH PITALE, J.

 DATE OF RESERVING THE JUDGMENT:   02.07.2021.
 DATE OF PRONOUNCING THE JUDGMENT: 17.07.2021.


 JUDGMENT

Heard the learned counsel for the parties finally.

2. The petitioners are the original defendants and they

are aggrieved by order dated 10/12/2020, passed by the Court of

7th Joint Civil Judge, Senior Division, Nagpur (Trial Court),

whereby an application for amendment of plaint filed on behalf of

the respondent (original plaintiff) has been allowed. The

petitioners claim that the said application ought not to have been

entertained by the Trial Court, for the reason that it was filed

when the suit had reached at the stage of final arguments. It is

further contended that allowing the amendment amounts to

changing the very nature of the suit.

3. The facts in brief leading to filing of the present writ

petition are that the respondent-Trust filed suit for possession and

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perpetual injunction against the petitioners herein, seeking a

decree of possession and a perpetual injunction restraining the

petitioners from interfering with or causing any disturbance to

dispensary run by the respondent-Trust, owner of the disputed

plot. The respondent-Trust stated before the Trial Court that it

runs an Ayurvedic College and that it had purchased land adjacent

to the premises, where it has been running the Ayurvedic College

and Hospital. The respondent-Trust claimed that it had purchased

the suit property, bearing NMC House No.423, by a registered sale

deed dated 17/02/1965. According to the respondent-Trust, the

petitioners on 09/07/2013, illegally broke open the lock on the

structure erected by the respondent-Trust, leading to filing of the

aforesaid suit for possession and perpetual injunction, as also

initiation of criminal proceedings against the petitioners.

4. The petitioners filed their written statement claiming

that they have been in possession of House No.421/A and that the

respondent-Trust was confusing this property with the property

allegedly owned by it. It was specifically stated that the petitioners

have no concern with NMC House No.423 and that the

respondent-Trust has filed the suit on the basis of

mis-identification of the property. While taking the aforesaid

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stand in the written statement, the petitioners stated in paragraph-

3 that they were denying the ownership of the respondent-Trust in

the said NMC House No.423. In the specific pleadings at

paragraph-(B), it was further stated that the respondent-Trust is

not entitled for any relief without proving ownership in the

aforesaid NMC House No.423, as the petitioners were disputing

ownership of the respondent-Trust in the said property.

5. On 09/06/2016, the Trial Court framed seven issues.

Issue No.1 is to the effect, as to whether the respondent-Trust is

owner of the suit property. The parties led evidence in respect of

all the issues, including the aforesaid issue No.1. On 02/12/2020,

when the Trial Court was hearing arguments in the aforesaid suit,

a contention was raised on behalf of the petitioners that the suit

itself was not tenable as a declaration of ownership was not

sought by the respondent-Trust.

6. At this stage, on 04/12/2020, the respondent-Trust

moved an application under Order VI Rule 17 of the Civil

Procedure Code (CPC), seeking amendment to insert a prayer

clause for declaring that the respondent-Trust is owner of the suit

property as described in the plaint map. It was specifically

submitted that although the main contest between the parties was

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about identification of the property and not about title, yet the

amendment in the prayer clause was sought to avoid any

complication. It was further submitted that issue No.1 was

already framed as regards the question of title and that there were

sufficient pleadings and evidence on record for the Court to deal

with such prayer sought to be added by way of amendment. The

petitioners filed their reply opposing the said application. By

impugned order dated 10/12/2020, the Trial Court allowed the

said application, subject to costs of Rs.3,000/-. The Trial Court

specifically took note of the fact that the respondent-Trust had

filed a pursis stating that if the amendment stood allowed, it did

not desire to adduce any further evidence, as all the necessary

pleadings and evidence were already on record, pertaining to the

proposed amended prayer. The Trial Court rejected the objection

raised on behalf of the petitioners, wherein they had placed

reliance on proviso to Order VI Rule 17 of CPC, particularly

pertaining to the aspect of due diligence on the part of the

respondent-Trust.

7. Aggrieved by the said order, the petitioners filed the

present writ petition, wherein on 15/12/2020, this Court issued

notice for final disposal and in the meantime, granted ad interim

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stay of further proceedings before the Trial Court. On

22/02/2021, Rule was granted and the ad interim stay order was

confirmed. Thereafter the writ petition was finally heard on

02/07/2021.

8. Mr. S.M.Bhangde, learned counsel appearing for the

petitioners, submitted that the impugned order was in the teeth of

proviso to Order VI Rule 17 of CPC, which had been added in the

year 2002. It was submitted that the proviso to Order VI Rule 17

of CPC specifically barred amendment of the pleadings after the

trial had commenced, unless the Court concluded that in spite of

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

commencement of trial. It was submitted that the suit in the

present case was at the stage of final arguments before the Trial

Court and that therefore, the trial had admittedly commenced.

The petitioners had specifically disputed title and ownership of the

respondent-Trust in the written statement and therefore, the

respondent-Trust was aware about cloud over its title in the suit

property. In this situation, the respondent-Trust was expected to

immediately move an application for amendment to add the

prayer pertaining to declaration of title, before the trial

commenced. It was further submitted that by way of amendment,

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the respondent-Trust was seeking to change the very nature of the

suit from that of a suit for possession and simpliciter injunction to

a suit for declaration. This was an attempt on the part of the

respondent-Trust to get over the law laid down by the Hon'ble

Supreme Court in the case of Anathula Sudhakar v. P. Buchi Reddy,

reported in (2008) 4 SCC 594. The learned counsel for the

petitioners also relied upon judgments of the Hon'ble Supreme

Court in the case of M. Revanna v. Anjanamma ((dead) by Legal

Representatives and others, reported in (2019) 4 SCC 332 and

Pandit Malhari Mahale v. Monika Pandit Mahale & ors. (Judgment

and order dated 10/01/2020) passed in Civil Appeal No.189 of

2020 and judgment of this Court in the case of Mallappa Shivling

Nandani v. Bhushan Prakash Risbud, reported in 2018 (4) ALL MR

305.

9. On the other hand, Mr. P. D. Sharma, learned counsel

appearing for the respondent-Trust, submitted that the Trial Court

was justified in allowing the application for amendment. It was

submitted that the respondent-Trust was constrained to move the

said application when the said contention was sought to be raised

on behalf of the petitioners before the Trial Court, on the basis of

judgment of Hon'ble Supreme Court in the case of Anathula

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Sudhakar v. P. Buchi Reddy (supra). It was submitted that in the

application for amendment itself, it was clarified that although

necessary pleadings of the rival parties and specific issue

pertaining to title in the suit property were already on record, the

respondent-Trust was seeking amendment to add the aforesaid

prayer for declaration, only in order to avoid unnecessary

complications. It was emphasized that while the respondent-Trust

was seeking relief in the context of NMC House No.423, the

petitioners themselves claimed that they were in ownership and

possession of House No.421/A and that the present case involved

question of identification of the property. It was submitted that in

such a situation, even applying the law laid down by the Hon'ble

Supreme Court in the case of Anathula Sudhakar v. P. Buchi Reddy

(supra), strictly speaking cloud over the title of the respondent-

Trust in the suit property could not be said to have been raised,

yet in order to avoid unnecessary complications and also because

rival pleadings and evidence on issue No.1 were already on

record, the said application had been moved on behalf of the

respondent-Trust.

10. It was further submitted that the respondent-Trust had no

intention to delay the proceedings, as it had nothing to gain from

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the same, particularly when it was and is seeking a decree of

possession in the suit property. The respondent-Trust had already

filed pursis on record before the Trial Court that it did not desire

to lead any further evidence with regard to the amended prayer,

indicating that the amendment was bona fide. The learned

counsel for the respondent-Trust relied upon judgments of the

Hon'ble Supreme Court in the case of North Eastern Railway

Admn. v. Bhagwan Das, reported in (2008) 8 SCC 511 and

judgment of this Court in the case of B.P.C.L. v. Precious Finance

Investment, reported in 2007 (1) Mh.L.J. 331.

11. Heard the learned counsel for the rival parties and

perused the material on record. There is no dispute about certain

aspects in the present case. It is an admitted position that the trial

in the present case has already commenced and in fact, it was at

the stage of final arguments, when the aforesaid application for

amendment was moved on behalf of the respondent-Trust. It is

also an admitted position that while the respondent-Trust claimed

ownership and proceeded on that basis to seek a decree of

possession and perpetual injunction, the petitioners challenged the

ownership of the respondent-Trust, but at the same time they

contended that they had nothing to do with the suit property and

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that this was a case of mis-identification of property on the part of

the respondent-Trust. In the face of such pleadings, the Trial

Court framed issue No.1 as "Whether the plaintiff-Trust is the

owner of the suit property?". The rival parties had already led

evidence in respect of the aforesaid issue framed by the Trial

Court. It is also an admitted position that the respondent-Trust

moved a pursis before the Trial Court that it did not intend to lead

any further evidence in the matter, after addition of the prayer for

declaration by way of amendment.

12. Order VI Rule 17 of Civil Procedure Code after the

year 2002, reads as follows:

"ORDER VI PLEADINGS GENERALLY [17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.]"

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13. The main part of the aforesaid Rule states that the

Court may at any stage of the proceedings allow amendment of

pleadings and all such amendments shall be made as may be

necessary for the purpose of determining the real questions in

controversy between the parties. Thus, the emphasis is on the

amendment assisting the Court in determining the real questions

in controversy between the parties. There is no doubt about the

fact that in the present case, pleadings of rival parties already

existed on the question of title of the respondent-Trust (original

plaintiff) in the suit property. The Trial Court framed specific issue

No.1 pertaining to the question as to whether the plaintiff is the

owner of the suit property. The rival parties went to trial, inter

alia, on the basis of the aforesaid issue No.1 and led their evidence

accordingly.

14. In the application for amendment itself, the

respondent-Trust contended before the Trial Court that the main

contest between the parties is about identification of the property

and not really about title. The said contention of the respondent-

Trust is borne out by specific stand taken by the petitioners in

their written statement, wherein it is stated that the respondent-

 Trust (original plaintiff) is mis-identifying the property.                    The


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petitioners have claimed that the petitioner No.1 has been in

settled and uninterrupted possession of House No.421/A and that

the petitioners have no concern with NMC House No.423, in

respect of which the respondent-Trust is claiming the reliefs in the

suit. In fact, the petitioners specifically state that the respondent-

Trust is confusing the location of its premises.

15. Despite this specific stand of the petitioners regarding

mis-identification of the property and their claim that they are in

ownership and possession of House No.421/A, having nothing to

do with the suit house i.e. NMC House No.423, at two places in

the written statement, the petitioners have denied the title of the

respondent-Trust in the aforesaid suit property. It is in this

backdrop that when a contention was raised at the stage of

arguments on behalf of the petitioners that the suit itself was not

tenable in the absence of a prayer for declaration of title, by

placing reliance upon judgment of the Hon'ble Supreme Court in

the case of Anathula Sudhakar v. P. Buchi Reddy (supra), that the

respondent-Trust was constrained to file the application for

amendment. The question is, whether such an application can be

said to be hit by proviso to Order VI Rule 17 of CPC.

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16. The proviso specifically states that an application for

amendment shall not be allowed after the trial has commenced,

unless the Court concludes that in spite of due diligence, the party

could not have raised the matter before commencement of trial.

In this regard, the learned counsel for the petitioners is justified in

relying upon the judgment of the Hon'ble Supreme Court in the

case of Pandit Malhari Mahale v. Monika Pandit Mahale & ors.

(supra), wherein the Hon'ble Supreme Court has held that if an

application for amendment is allowed without a finding being

rendered on the aspect of due diligence under proviso to Order VI

Rule 17 of CPC, such an order allowing the amendment cannot be

sustained.

17. In the present case, there is no dispute about the fact

that the trial has already commenced. Therefore, the respondent-

Trust was required to pass the test of due diligence under proviso

to Order VI Rule 17 of CPC, for the amendment application to be

granted. It has been vehemently argued on behalf of the

petitioners that in the written statement itself the petitioners had

denied the title of the respondent-Trust, thereby raising a cloud

over title of the respondent-Trust in the suit property and that

therefore, the application for amendment ought to have been

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moved immediately and in any case before commencement of the

trial.

18. This Court is of the opinion that the statements made

in the written statement in paragraph-3 and paragraph-(B) of the

specific pleadings, denying the title of the respondent-Trust in the

suit property, cannot be viewed in isolation. A perusal of the

entire written statement would show that the petitioners

themselves stated that they had no concern with the suit property

bearing NMC House No.423, as they were in ownership and

possession of House No.421/A and further that the respondent-

Trust was misidentifying the property. The petitioners also stated

that the respondent-Trust was confused about location of its own

premises. Therefore, it is not the case of the petitioners that they

are claiming ownership in the suit property bearing NMC House

No.423, but that the respondent-Trust is confused about location

of its own property. Denial of title on behalf of the petitioners

needs to be appreciated in the context of the aforesaid stand taken

in the written statement. It is also necessary to appreciate that

specific issue No.1 was framed by the Trial Court on the question

whether the respondent-Trust is owner of the suit property. The

parties led evidence on the said issue also, which is a part of the

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record of the Trial Court.

19. It is at the stage of arguments that the petitioners

claimed that the suit itself is not tenable, as there is absence of a

specific prayer for declaration of title, in view of the law laid down

by the Hon'ble Supreme Court in the case of Anathula Sudhakar v.

P. Buchi Reddy (supra). Whether the position of law clarified by

the Hon'ble Supreme Court in the said judgment would lead to a

finding that the suit itself is not tenable is another matter, but it is

at this stage that the respondent-Trust found it necessary to move

the application for amendment, in order to add the prayer for

declaration, so as to avoid complications and multiplicity of

proceedings. The respondent-Trust, did not move the application

in order to delay the proceedings before the Trial Court and this is

evident from the pursis already placed on record that the

respondent-Trust does not desire to lead any evidence in view of

the addition of prayer for declaration. In fact, the respondent-

Trust has nothing to gain by delaying the proceedings before the

trial Court, as it is not in possession of the suit property and in

fact, it is praying for grant of decree of possession.

20. In this context, it would be relevant to refer to the

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position of law summarized by the Hon'ble Supreme Court in the

case of Anathula Sudhakar v. P. Buchi Reddy (supra), which reads

as follows:

"To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :

(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar).

Where the averments regarding title are absent in a plaint and where there is no issue relating to title,

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the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."

21. Perusal of the said position of law would show that

the question regarding tenability of the suit filed by the

respondent-Trust in the absence of prayer for declaration could be

debatable. Yet, as per clause (c) in the above quoted paragraph-21

of the judgment of the Hon'ble Supreme Court, there could be a

possibility of the parties being relegated to the remedy of a

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comprehensive suit for declaration of title, instead of deciding the

issue of injunction. This itself indicates that there is a possibility

of multiplicity of litigation, in the absence of the amendment

being allowed. The aspect of due diligence in the facts and

circumstances of the present case needs to be appreciated in this

context. It is when the petitioners specifically contended before

the Trial Court that the suit is not tenable, that the application for

amendment was moved, thereby showing that in the facts and

circumstances of this case it cannot be said that the respondent-

Trust failed the test of due diligence contemplated under proviso

to Order VI Rule 17 of the CPC.

22. Even otherwise, the Hon'ble Supreme Court in the

case of Revajeetu Builders & Developers v. Narayanswamy & Sons,

reported in (2009) 10 SCC 84, has culled out basic principles to be

taken into consideration while deciding an application for

amendment. In paragraph-63 of the said judgment, it is held as

follows:

"63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

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(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) 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."

23. This Court has considered the judgment of the Hon'ble

Supreme Court in the case of M. Revanna v. Anjanamma (supra)

upon which the learned counsel for the petitioners has placed

reliance. A perusal of the said judgment would show that the

Hon'ble Supreme Court has emphasized that normally

amendments are allowed in the pleadings to avoid multiplicity of

litigation, but the court needs to take into consideration whether

the application for amendment is bona fide or mala fide and

whether the amendment causes prejudice to the other side. On

facts, the Supreme Court held in that case that not only was the

amendment belated but it was also not bona fide and if allowed it

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would change the nature and character of the suit. It was found

that if the application was allowed it would lead to travesty of

justice. But, the facts in the present case are distinguishable and

therefore, the judgment cannot be of assistance to the petitioners.

The judgment of this Court in the case of Mallappa Shivling

Nandani Vs Bhushan Prakash Risbud (supra) has been relied

upon, on behalf of the petitioners to highlight the position of law

laid down by the Hon'ble Supreme Court in the case of Anathula

Sudhakar Vs P. Buchi Reddy (supra). The contention in that regard

is already dealt with herein above.

24. On the other hand, the judgment of the Hon'ble Supreme

Court in the case of North Eastern Railway Admn. v. Bhagwan Das

(supra) and that of this Court in the case of B.P.C.L. v. Precious

Finance Investment (supra) have laid down that amendments

ought to be allowed which satisfy the two conditions: (a) of not

working injustice to the other side, and (b) of being necessary for

the purpose of determining the real questions in controversy

between the parties. It is also laid down that the Court must see

that the application is not filed to delay the trial. These aspects, in

the facts and circumstances of the present case, are in favour of

the respondent.

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25. In the present case, this Court is of the firm opinion that

the amendment is imperative for proper and effective adjudication

of the case, the application for amendment is bona fide, the

proposed amendment causes no prejudice to the petitioners and

refusing the amendment would certainly lead to multiplicity of

litigation and injustice. This Court is also of the opinion that the

proposed amendment does not change the nature of the suit, for

the reason that pleadings pertaining to the question of title are

already on record and aforesaid specific issue No.1 pertaining to

ownership of the respondent-Trust in the suit property was already

framed, in the context of which rival parties have already led their

evidence. The respondent has also undertaken that it does not

wish to lead any further evidence after amendment of the prayer

clause, thereby indicating that the application for amendment is

not for the purpose of delaying the trial. Therefore, it cannot be

said that the Trial Court committed an error in allowing the

application for amendment filed by the respondent-Trust.

26. In view of the above, this Court finds that the present

writ petition does not have any merit and that it deserves to be

dismissed. Accordingly, the writ petition is dismissed.

27. Rule stands discharged. No order as to costs.

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28. As the respondent-Trust will not be leading evidence

despite the amendment being allowed. Hence, considering the

stage of the suit before the Trial Court, it is directed that the Trial

Court shall decide the suit finally at the earliest and in any case on

or before 15/09/2021.

JUDGE

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