Bombay High Court
Hasan Abdul Karim Shaikh vs Fatima Abdul Karim Shaikh on 17 November, 2021
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5141 OF 2021
Hasan Abdul Karim Shaikh .. Petitioner
Versus
Fatima Abdul Karim Shaikh .. Respondent
...
Mr.Anvil S. Kalekar for the Petitioner.
Mr.Shrishail Sakhare for the Respondent.
...
CORAM: BHARATI DANGRE, J.
DATED : 17th NOVEMBER, 2021
P.C:-
1. The petitioner is aggrieved by the impugned judgment
and order dated 01/04/2021 passed by the learned 3 rd Joint
Civil Judge, Senior Division, Solapur, on an application below
Exh.78 in Special Civil Suit No.17 of 2014, fled by the
petitioner (original plaintiff), seeking amendment in his
pleadings. The application, purportedly fled under Order 6
Rule 17 of the CPC, is rejected by the impugned order.
2. Heard the learned counsel for the petitioner and the
learned counsel for the defendant.
3. The petitioner, who is the original plaintiff, has fled a
suit for partition and separation of the suit properties by
M.M.Salgaonkar
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impleading the defendants in the suit and the relief was sought
in the backdrop of the pleadings that the properties are either
purchased by his father from his own earnings or received
from his forefather. When the defendant was being cross-
examined, an application for amendment was preferred in the
month of March 2021, seeking exhaustive amendment in the
plaint.
On perusal of the application at Exh.E of the paper-book
and when carefully read, it surfaces that the plaintiff has
sought addition of parties, addition of properties and he also
seeks bringing on record additional facts vide paragraph
Nos.4, 5 and 6 of the amendment application.
The application pleads that in order to avoid the
multiplicity of the proceedings, amendment should be allowed.
4. The parameters for allowing an amendment by virtue of
Order 6 Rule 17 of the CPC are well settled and have been
crystallised by the authoritative pronouncements of the
Hon'ble Apex Court as well as of this Court, delivered from
time to time. In case of Revajeetu Builders and Developers v.
Narayanaswamy & Sons & Ors.1, the Hon'ble Apex Court has
culled down the principles to be taken into account while an
application for amendment is to be allowed, by observing that
the grant of amendment is a serious judicial exercise and the
power cannot be exercised in a casual manner.
Though an amendment, which is necessary for effective
adjudication of the proceedings cannot be denied, but a belated
1 (2009) 10 SCC 84
M.M.Salgaonkar
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amendment which would change the nature of the relief
sought, cannot be entertained, particularly when the cause
arising out of the amendment would lie beyond the period of
limitation and in absence of establishing that the facts were
not within the knowledge of the party and even by due
diligence,it could not be brought before the court when the suit
was instituted. In case of M.Revanna vs Anjanamma (Dead)
by LRs2, the position of law has been reiterated to the effect
that amendment of the pleadings, after commencement of
trial, shall not be allowed except subject to the conditions
stated in the proviso appended to Order 6 Rule 17, necessarily
meaning that the due diligence will have to be demonstrated.
In absence of any attempt being made by the plaintiff to
demonstrate the same, the learned Judge is perfectly justifed
in rejecting the application by recording that the plaintiff is
seeking addition of parties, addition of properties and addition
of facts and since he has failed to establish that the facts were
not within his knowledge when the suit was instituted and
since he has preferred to keep mum till the trial reached to the
stage of its culmination, bar imposed by the proviso appended
to Order 6 Rule 17 has been rightly invoked.
5. I fnd no legal infrmity in the impugned order. By
upholding the order dated 01/04/2021, the writ petition is
dismissed.
( SMT. BHARATI DANGRE, J.)
2 2019(4) SCC 332
M.M.Salgaonkar
