Bombay High Court
Sanjaysingh S/O Babasingh ... vs Heeradevi W/O. Bhimkamsingh ... on 8 September, 2021
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3121 OF 2021
PETITIONER: Sanjaysingh Babasingh Chandel,
aged about 52 years, Occ. Cultivator,
R/o. Butibori, Tah. and Dist. Nagpur.
...VERSUS...
RESPONDENTS: 1. Heeradevi w/o Bhimkamsingh Parihar,
(since deceased through L.Rs.)
1-a] Roshansingh Bhikamsingh Parihar,
aged about 40 years, Occ. Private Job,
1-b] Smt. Kiran Gopalsingh Bhandaria,
aged about 64 years, Occ. Household,
1-c] Chanda w/o Arvindsingh Rathod,
aged about 59 years, Occ. Household,
1-d] Chhaya w/o Shriram Singh,
aged about 50 years, Occ. Household.
1-e] Smt. Anupama w/o Navneetpratap Singh,
aged about 42 years, Occ. Household,
All R/o. C/o. At present Roshansingh
Rajput, Flat No. 304, Ganga Residency
Shahu Nagar, Besa Road Manewada.
AND
WRIT PETITION NO. 1157 OF 2019
PETITIONER: Sanjaysingh Babasingh Chandel,
aged about 50 years, Occ. Cultivator,
R/o. Old Basti Butibori, Tah. and Dist. Nagpur.
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...VERSUS...
RESPONDENTS: 1. Raghusingh Lalsingh Chandel
(since deceased through L.Rs.)
1-a] Kunjilal w/o Rajendrasingh Chauhan
aged about 70 years, Occ. Household,
R/o. Sarai Ward, Near Sapna Talkies,
Chandrapur.
1-b] Dilipsingh s/o Raghunath Chandel,
aged about 63 years, Occ. Nil,
R/o. Old Basti, Butibori, Tq. and Dist.
Nagpur.
1-c] Smt. Meena w/o Bhagwansingh Dixit,
aged about 63 years, Occ. Household,
R/o. Kurmi Mohalla, Bijlighar Ward,
Seoni (M.P.)
1-d] Smt. Savita w/o Yashwantsingh Chavan,
aged about 62 years, Occ. Household.
R/o. c/o Jhassu Mamu, at Bhaisdehi,
Post. Bhaisdehi, Dist. Baitul (M.P)
1-e] Pradipsingh Raghunath Chandel,
aged about 60 years, Occ. Agriculturist,
R/o. Old Basti, Butibori, Tq. and Dist.
Nagpur.
1-f] Smt. Nalini Satishkumar Nagarkar
aged about 56 years, Occ. Household,
R/o. At and Post Dharmach Ayodhya
Society, Tah. Petlad, Dist. Anand (Gujrat)
1-g] Kishor Raghunath Chandel,
aged about 54 years, Occ. Agriculturist,
R/o. Old Basti Butibori, Ward No.2,
Tq. and Dist. Nagpur.
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1-h] Smt. Sunita d/o Raghunath Chandel,
aged about 48 years, Occ. Household,
R/o. Purani Basti, Butibori, Tq. and Dist.
Nagpur.
2. Jaswantsingh Lalsingh Chandel
(since deceased through L.Rs.)
2-a] Smt. Lata wd/o Jaswantsingh Chandel,
aged about 50 years, Occ. Household.
2-b] Treta Sanjay singh Bais
R/o. Near Masjid Parseoni,
Tah. Parseoni, Dist. Nagpur.
2-c] Pratiksha d/o Jaswantsingh Chandel,
aged about 28 years, Occ. Household.
2-d] Ajay s/o Jaswantsingh Chandel,
aged about 26 years, Occ. Cultivator.
2-e] Amit s/o Jaswantsingh Chandel,
aged about 26 years, Occ. Cultivator,
Nos. 2-a to 2-e are R/o. Old Basti,
Butibori, Tah. and Dist. Nagpur.
3. Heeradevi w/o Bhikamasingh Parihar,
(since deceased through L.Rs.)
3-a] Roshansingh Bhikamsingh Parihar,
aged about 40 years, Occ. Private Job,
3-b] Smt. Kiran Gopalsingh Bhandaria,
aged about 64 years, Occ. Household,
3-c] Chanda w/o Arvindsingh Rathod,
aged about 59 years, Occ. Household,
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3-d] Chhaya w/o Shriram Singh,
aged about 50 years, Occ. Household.
3-e] Smt. Anupama w/o Navneetpratap Singh,
aged about 42 years, Occ. Household,
All R/o. C/o. At present Roshansingh
Rajput, Flat No. 304, Ganga Residency
Shahu Nagar, Besa Road Manewada,
Nagpur-34.
4. State of Maharashtra, through Shri V.D.
Mundwaik, Talathi Revenue Circle (P.H.)
No.76, Bori, Mouza Butibori, Tah. Nagpur
Dist. Nagpur.
5. Circle Inspector (Revenue), Mouza Bori,
P.S.Butibori, Tq. and Dist. Nagpur.
6. Nagar Parishad, Butibori, through its
Chief Officer, Tq. and Dist. Nagpur.
7. Village Panchayat Bharkas, through its
Secretary, Village Panchayat Bharkas,
Tahsil Hingna, Dist. Nagpur.
----------------------------------------------------------------------------------------------
Shri N.S.Deshpande, Advocate for petitioner
Shri P.K.Mishra, Advocate for respondent Nos. 1(a) to 1(e)
Shri P.S.Sadavarte, Advocate for R-6 in WP 1157/2019
----------------------------------------------------------------------------------------------
CORAM : AVINASH G. GHAROTE, J.
DATE : 08/09/2021.
1] Heard Mr. Deshpande, learned counsel for the
petitioner, Mr. Mishra learned counsel for Respondent Nos. 1(a)
to 1(e) in both the petitions and Mr. Sadavarte learned counsel for
Respondent No.6 in W.P No.1157/2019.
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2] Rule. Rule made returnable forthwith. Heard finally by
consent of the learned counsels appearing for the parties.
3] In W.P. No. 3121 of 2021, a challenge is raised to the
order dated 8.4.2021, passed below Exh. 453 in R.C.S. No.
1188/1986, (Heeradevi and ors vrs. Bhagatsingh and ors ) by which
the application for amendment of the plaint has been allowed by the
learned trial Court. Regular Civil Suit No. 1188/1986 is a suit for
partition of the immovable properties.
4] In W.P.No. 1157 of 2019, a challenge is raised to the
order dated 4.1.2019 passed below Exh. 69 in R.C.S. No.439/2002
(Raghusingh Lalchand Chandel vrs. State of Maharashtra and ors ),
whereby the application for amendment has been allowed by the
learned trial Court. Regular Civil Suit No. 439/2002 is a suit
challenging the mutation done in respect of the properties which are
the subject matter of R.C.S.No. 1188/86.
5] It is material to note that the parties to both the suits
are common, except for the State of Maharashtra.
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6] An application for amendment of the plaint came to be
filed seeking to amend the plaint, by way of a declaration that the
Will dated 8.3.1995, which was in favour of the present petitioner
was illegal, null and void and did not confer any right whatsoever in
favour of the petitioner to either represent or inherent by
testamentary succession the share of the deceased defendant No.1/
Bharatsingh in the suit property. Appropriate amendments in the
body of the plaint were also sought.
7] The application for amendment was opposed by
contending that Bharatsingh Chandel/Org.Defendant No.1 had
already expired in the year 2002 and on the basis of his Will dated
8.3.1995, the present petitioner was already brought on record in
the year 2003 itself and therefore, the plaintiffs were fully aware of
the existence of the Will dated 8.3.1995, since 2003 in spite of
which no challenge was raised to the same at any point of time prior
to the present application for amendments, which were filed in the
year 2019 and therefore, the same was not permissible in law, the
challenge having already been barred by limitation.
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8] The learned trial Court by the impugned orders though
noted that the petitioner was brought on record as the legal
representative on the basis of the application made by him and as
per the order passed on Exh.44 therein, however, held that there
was no pleading in respect of the said Will and therefore, accepting
the contention as raised by the plaintiff that it was only since 2018
that the legal representative of the deceased defendant No.1 started
asserting his right on the basis of the Will for mutation of his name
that a cause of action arose for challenging the Will, allowed the
amendment observing that as the petitioner/defendant no.1 would
be at liberty to raise the issue of limitation by amending his
pleadings, no prejudice would be caused to him.
9] Mr. Nandesh Deshpande, learned counsel for the
petitioner contends that the amendment ought not to have been
allowed by the learned trial court, as the plaintiff was throughout
aware of the Will dated 8.3.1995 and the right asserted by the
petitioner on its basis. He has placed on record today, by way of a
pursis, a copy of the application under Order 22, Rule 4 of C.P.C.,
dated 11.9.2003 at Exh. 247 in R.C.S No.1188/86, whereby the
petitioner/deft.no.1 sought himself to be impleaded in place of the
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deceased deft. no.1, on the basis of the registered Will dated
8.3.1995, whereby the share of the org.defendant No.1/Bharatsingh
stood bequeathed to him.
10] This application for impleadment, dated 11.9.2003 was
opposed by the plaintiff by filing his say on the said application. By
an order dated 14.10.2003, the learned trial Court allowed the
application of the petitioner/defendant No.1 by taking note of the
pursis dated 8.9.2003 filed by the plaintiffs stating that they had no
objection for joining the applicant Sanjaysingh Babasingh Chandel as
party to the suit only for limited and restricted purpose for final
argument of the suit, and observing that if the said applicant
Sanjaysingh Chandel/petitioner was allowed to join the suit as a
legal representative of deceased Bharatsingh Chandel in view of the
registered Will dated 8.3.1995, no difficulty would be caused to the
plaintiff, because by allowing him to join in the suit as a legal
representative, the Court was not conferring any right of heirship to
the estate of the deceased, and keeping the question as to the
validity of the Will open as it ought to have been, allowed the
application for impleadment.
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11] He further invites my attention to the Written
Statement of the legal representative of defendant No.1 in R.C.S
No.1188/86 dated 7.12.2004, wherein a right was claimed by the
said Sanjaysingh Chandel/petitioner in the share of late
Bharatsingh/Org. Defendant No.1 on the basis of the Will dated
8.3.1995 executed in his favour.
12] Learned counsel Mr. Deshpande, therefore, submits that
the plaintiff was throughout aware about the execution of the Will
dated 8.3.1995 from 11.9.2003, the date of the application and the
subsequent date of passing of the order thereon on 14.10.2003 and
had not moved any application laying a challenge to the same till
2019, in spite of having specific knowledge about the same and
therefore, the plea as raised in the application below Exh. 453 that
the cause of action to raise a challenge to the Will dated 8.3.1995
arose in 2018 was clearly a false plea in view of which the
application could not have been allowed.
13] Mr. Mishra learned counsel for the
plaintiffs/respondents submit that though the petitioner was added
as a legal representative of deceased Bharatsingh before the trial
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court by virtue of the order dated 14.10.2003 passed below Exh.
249, the same was for a limited purpose as indicated by the court in
its order, without determining the validity of the Will and therefore,
there was no cause of action at that point of time for the plaintiffs to
have laid challenge to the validity of the Will. He submitted that
such a cause arose in 2018 for the reason that defendant No.1
started asserting his claim for mutation on the basis of the said Will
which gave rise to a cause for the purpose of moving the said
application. He places reliance upon State of Mah vrs. Hindustan
Construction Co. Ltd (2010) 4 SCC 518 ; Varun Pahwa vrs. Mrs.
Renu Choudhariy, Civil Appeal No. 2431 of 2019, decided on
1.3.2019 by the Hon'ble Apex Court. He also places reliance upon
the judgment of this Court in the case of Babarao Pandurangji Patil
and anr vrs. Sou. Kalavati Rambhauji Sathawane and others , W.P.
No. 1465 of 2017, decided on 4.2.2019, to contend that it is the
nature and purpose of the amendment which is to be considered,
the issue of amendment is a matter of procedure and amendment as
a matter of rule has to be liberally construed. He, therefore, submits
that no fault can be found with the orders as passed by the learned
trial Court and the petition be dismissed.
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14] In Hindustan Construction Co. Ltd. (supra) while
considering the question of amendment, it has been held thus -
"16. Pleadings and particulars are required to
enable the court to decide true rights of the parties
in trial. Amendment in the pleadings is a matter of
procedure. Grant or refusal thereof is in the
discretion of the court. But like any other discretion,
such discretion has to be exercised consistent with
settled legal principles. In Ganesh Trading Co. v.
Moji Ram, this Court stated :
"2. Procedural law is intended to facilitate
and not to obstruct the course of substantive
justice. Provisions relating to pleading in
civil cases are meant to give to each side
intimation of the case of the other so that it
may be met, to enable Courts to determine
what is really at issue between parties, and
to prevent deviations from the course which
litigation on particular causes of action must
take."
17. Insofar as Code of Civil Procedure, 1908 (for
short `CPC') is concerned, Order VI Rule 17
provides for amendment of pleadings. It says that
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.
18. The matters relating to amendment of pleadings
have come up for consideration before courts from
time to time. As far back as in 1884 in Clarapede &
Company v. Commercial Union Association - an appeal
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that came up before Court of Appeal, Brett M.R.
stated :
".....The rule of conduct of the court in such
a case is that, however negligent or careless
may have been the first omission, and,
however late the proposed amendment, the
amendment should be allowed if it can be
made without injustice to the other side.
There is no injustice if the other side can be
compensated by costs; but, if the
amendment will put them into such a
position that they must be injured, it ought
not to be made....."
19. In Charan Das and Others v. Amir Khan and
Others, the Privy Council exposited the legal
position that although power of a Court to amend
the plaint in a suit should not as a rule be exercised
where the effect is to take away from the defendant
a legal right which has accrued to him by lapse of
time, yet there are cases in which that consideration
is outweighed by the special circumstances of the
case.
20. A four-Judge Bench of this Court in L.J. Leach and
Company Ltd., v. Jardine Skinner and Co. while dealing
with the prayer for amendment of the plaint made
before this Court whereby plaintiff sought to raise,
in the alternative, a claim for damages for breach of
contract for non-delivery of the goods relied upon
the decision of Privy Council in Charan Das &
Others granted leave at that stage and held :
"16. It is no doubt true that courts would, as
a rule, decline to allow amendments, if a
fresh suit on the amended claim would be
barred by limitation on the date of the
application. But that is a factor to be taken
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into account in exercise of the discretion as
to whether amendment should be ordered,
and does not affect the power of the court to
order it, if that is required in the interests of
justice."
In Varun Pahwa (supra), while considering the application of
amendment, the court has also considered the earlier
pronouncements in Charan Das vrs. Amir Khan, 47 IA 255; Jai Jai
Ram Manohar Lal, (1969) 1 SCC 859 and Uday Shankar Triyar vrs.
Ram kalewar Prasad Singh and anr, (2006) 1 SCC 75 , to hold that in
case there was any inadvertant mistake in the plaint, the same could
be allowed to be corrected so as to permit a Private Limited
Company to sue as the plaintiff, as the original plaintiff had filed the
suit as a Director of the said Private Limited Company.
15] In Babarao Pandurangji Patil, this Court had upheld the
order allowing the amendment of the plaint which was so filed after
the written statement of the defendant. The basic principles as laid
down in Abdul Rehman vrs. Mohd. Ruldu, (2012) 11 SCC 341 and
Rewajeetu Builders and Developers vrs. Narayanaswami and Sons
and others, (2009) 10 SCC 84, were considered.
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16] It is a settled position of law that while considering an
application for amendment, it has to be considered whether the
amendment sought is imperative for proper and effective
adjudication of the case; whether it was bonafide or malafide;
whether it caused such prejudice as could not be compensated
adequately in terms of money; whether it would lead to injustice or
multiple litigation; whether it would constitutionally or
fundamentally change the nature and character of the case; as a
general rule amendments should be declined if a fresh suit on the
amended claim would be barred by limitation on the date of the
application.
17] Though learned counsel Mr. Mishra contends that the
cause of action for filing the amendment which laid a challenge to
the Will dated 8.3.1995, arose in 2018, when the petitioner is
claimed to have pressed his suit for mutation on the basis of the Will
dated 8.3.1995, the knowledge about the execution of the Will and
the right claimed by defendant No.1/petitioner was with the
plaintiff, since 11.9.2003, the date on which an application was
made by the petitioner to implead him as a party defendant in place
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of the deceased defendant No.1 in R.C.S. No.1188/1986. In fact the
impleadment of the petitioner was conceded to by filing the pursis
dated 8.9.2003, may be for a limited purpose, that however, did not
mean that the right to lay a challenge to the legality and validity of
the said Will, in case the same was sought to be laid, stood
postponed to a future period of time. It is a settled position of law
that the limitation once started, runs continuously. Thus, when the
petitioner laid a claim to be added in place of the deceased
defendant No.1 on the basis of the Will dated 8.3.1995, the cause of
action to raise any challenge to the validity of the Will clearly started
to run from the date of the application dated 11.9.2003 and was
continuous. An application therefore to lay a challenge to the said
Will filed on 10.12.1019 in R.C.S. No. 1188/86 and in R.C.S No.
439/2000, was clearly barred by limitation, which position has been
totally ignored by the learned trial Court. That apart, the Will dated
8.3.1995, merely bequeathed the right in the share of the deceased
defendant No.1/Bharatsingh in the suit property, which was yet to
be determined.
18] That being the situation, I finds that the impugned
orders dated 8.4.2021, passed in R.C.S No.1188/86 below Exh. 453
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and 4.1.2019, passed in R.C.S. No.439/2002 below Exh. 69, are
clearly not sustainable in law and therefore, are quashed and set
aside, resultantly the applications for amendments as indicated above
are also dismissed. The writ petitions are allowed in above terms. No
costs.
JUDGE
Rvjalit
