Bombay High Court
Chandrakant S/O Jintendra ... vs Mohan Maniram Pawar And Another on 11 April, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH: NAGPUR
WRIT PETITION NO. 6711 OF 2019
Chandrakant s/o Jitendra Thakkar
Vs.
Mohan Maniram Pawar and anr.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. R.K. Thakkar, Advocate for petitioner.
Mr. Anil A. Dhawas, Advocate for respondents.
CORAM : MANISH PITALE J.
DATE : 11.04.2022.
By this writ petition, the petitioner has
challenged order dated 20.09.2019 passed by the Court
of District Judge-5, Akola, (hereinafter referred to as the
'appellate Court'), whereby application at Exhibit 18 has
been allowed.
2. By the said application, the respondent No.1
i.e. the original defendant No.2 sought amendment of a
reply filed before the trial Court, which was treated as
written statement. According to the petitioner, the
appellate Court committed a grave error in allowing
such an application at the appellate stage, despite the
fact that the respondent No.1 himself had requested the
trial Court to treat the aforesaid reply as written
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statement and he had even entered the witness box and
he was cross-examined on behalf of the petitioner i.e.
the original plaintiff.
3. In the present case, the petitioner filed a suit
for specific performance of contract against the
respondents. It was submitted that the petitioner had
entered into an agreement prior in point of time with
respondent No.2 i.e. the original defendant No.1, in
respect of the suit property and that thereafter, the
respondent No.2 had illegally executed a sale-deed
dated 09.02.2011 in favour of respondent No.1 i.e. the
original defendant No.2. The respondent No.1 filed only
a reply to the application for temporary injunction filed
on behalf of the petitioner and thereafter, a pursis was
placed on record before the trial Court requesting the
said reply to be treated as his written statement. It was
on the basis of such pleadings that evidence was led on
behalf of the rival parties. The respondent No.1 entered
into witness box and he was cross-examined on behalf of
the petitioner.
4. After taking into consideration the pleadings
as well as the evidence and other material on record, by
judgment and order dated 13.09.2015, the trial Court
i.e. the Court of 2nd Joint Civil Judge Senior Division,
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Akola, decreed the suit in favour of the petitioner. The
Sale-deed dated 19.02.2011, executed by respondent
No.2 in favour of respondent No.1 was cancelled and it
was held as not binding on the petitioner. The petitioner
was directed to pay the balance consideration and the
respondent No.2 was directed to execute the sale-deed
in favour of the petitioner. The respondent No.1 was
restrained from transferring the suit property by any
mode to any person and he was also restrained from
creating third party rights in the suit property. Needless
to say, the trial Court gave a consequential direction to
the respondent No.1 to hand over possession of the suit
property to the petitioner.
5. The aforesaid judgment and decree passed
by the trial Court was made subject matter of appeal
before the appellate Court by the respondent No.1. It is
in the appeal that on 25.01.2019, the respondent No.1
filed an application for amendment of his reply, which
was treated as written statement before the trial Court.
It was marked as Exhibit 18. By the proposed
amendment, the respondent No.1 sought to add certain
pleadings from paragraph Nos.5A to 5E in the said reply,
which was treated as written statement. The only reason
stated in the application while seeking amendment was
that the counsel engaged before the appellate Court
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noticed that the reply to the application for temporary
injunction before the trial Court was treated merely by
way of pursis as written statement on behalf of the
respondent No.1, which was prejudicial to the interest of
respondent No.1 and that therefore, certain pleadings
were sought to be added by way of amendment. The
said application was opposed on behalf of the petitioner.
6. As noted above, by the impugned order, the
appellate Court allowed the application merely by
imposing costs of ₹ 1000/-. 1000/-.
7. Mr. Thakkar, learned counsel appearing for
the petitioner submitted that the impugned order
deserves to be set aside, for the reason that since the
respondent No.1 not only entered into the witness box
but he was cross-examined before the trial Court, he
could not turn around at the stage of appeal before the
appellate Court to claim that inadvertently the reply
filed to the application for temporary injunction was
treated as written statement and that since the counsel
engaged before the appellate Court noted the deficiency,
the amendment application was necessitated. It was
submitted that nothing prevented the respondent No.1
to argue in support of the appeal on the basis of the
material available on record in order to claim that the
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decree of specific performance could not have been
granted in favour of the petitioner.
8. It was contended that such amendment of
pleadings at the whims and fancies of respondent No.1
and solely on the ground of advice given by counsel
engaged at the appellate stage, ought not to be accepted.
9. Mr. Dhawas, learned counsel appearing for
respondent No.1, on the other hand, submitted that the
reply before the trial Court to the application for
temporary injunction could not have been treated as
written statement merely by placing a pursis on record
before the trial Court. It was submitted that when the
counsel engaged at the appellate stage noticed the
prejudice caused to the respondent No.1, as the reply
was treated as written statement by merely filing a
pursis, the amendment application was necessitated,
which was in the interest of justice. It was submitted
that the appellate Court had correctly opined that
multiplicity of litigation would be avoided, if the
amendment was to be allowed. Reliance was placed on
the judgment of the Hon'ble Supreme Court in the case
of Revajeetu Builders and Developers Vs.
Narayanaswamy and Sons and Others, 2009 (10) SCC
84.
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10. Heard learned counsel for the rival parties
and perused the material on record.
11. It is an admitted position that the respondent
No.1 i.e. the original defendant No.2 had filed reply to
the application for temporary injunction filed on behalf
of the petitioner. It is also an admitted position that the
very reply was treated as written statement on behalf of
the respondent No.1 by moving a pursis before the trial
Court. It is on the basis of the reply being treated as
written statement and pleadings being treated as such
on behalf of the respondent No.1 that the parties led
evidence in support of their respective stands. The
respondent No.1 entered the witness box and was cross-
examined on the basis of such pleadings. The trial Court
decreed the suit, as noted above.
12. The appellate Court considered the
application for stay moved on behalf of the respondent
No.1 and granted stay to the decree of the trial Court
except Clauses 3 and 6. Clause 3 pertains to the
direction to the petitioner to pay balance consideration
amount or deposit the same in the Court and Clause 6
pertained to restraining respondent No.1 from
transferring the suit property or creating third party
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rights therein and also restrained the respondent No.1
from carrying out any construction in the suit property.
13. It is an admitted position that the petitioner
indeed deposited the balance amount of consideration
i.e. ₹ 1000/-. 10,99,000/- before the trial Court. It is alleged on
behalf of the petitioner that the respondent No.1
violated the aforesaid direction contained in Clause 6 of
the decree passed by the trial Court and that
construction has been undertaken despite such order of
the trial Court. This is disputed on behalf of the
respondent No.1.
14. Insofar as violation of Clause 6 of the decree
is concerned, the petitioner would be at liberty to raise
the aforesaid issue before the appellate Court with
necessary material and the appellate Court shall
certainly look into the said aspect of the matter after
hearing the rival parties.
15. Insofar as the question of amendment as
claimed under application at Exhibit 18 is concerned, a
perusal of the impugned order would show that
according to the appellate Court the amendment
deserves to be allowed because the Court is not
supposed to take a hyper technical approach in such
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matters and that a pragmatic approach is advised. It is
further held that the Court must ensure minimization of
litigation and further that the merits of the amendment
could not be looked at by the Court while considering
such an application.
16. There can be no doubt about the fact that
hyper technical and pedantic approach on the part of
the Court is to be eschewed and an approach promoting
substantial justice is to be adopted. But, the question is,
whether in the facts and circumstances of the present
case, it could be said that dis-allowing the proposed
amendment would amount to a hyper technical
approach in the matter? It is an admitted position that
the reply filed to the application for temporary
injunction was treated as written statement on behalf of
respondent No.1 and it was on the basis of such
pleadings that the parties led evidence. The respondent
No.1 also deposed on the basis of such pleadings and he
was cross-examined on behalf of the petitioner.
17. The only reason stated in the application for
amendment is that when the counsel at the appellate
stage realized that treating reply to the application for
temporary injunction as written statement had led to
deficiency in the pleadings, that the application for
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amendment was necessitated. This Court is of the
opinion that wisdom in hindsight cannot be a sole
ground for seeking amendment of basic pleadings in a
situation where the matter has travelled upto the
appellate Court, upon the trial Court having rendered
findings in pursuance of a full-fledged trial. Merely
because there is a change of counsel or that the counsel
at the appellate stage has a different opinion in the
matter, it cannot be a ground for entertaining such an
application for amendment of basic pleadings. The
appellate Court certainly erred in holding that rejecting
the application for amendment would amount to a
hyper technical approach.
18. Equally, the appellate Court was not justified
in holding that rejecting the application for amendment
would lead to multiplicity of litigation. In fact, it is to the
contrary. Allowing such amendments at appellate stage
would lead to opening the door for such litigants to then
claim the right to lead evidence in the light of the
amendment of pleadings and thereby not only create a
situation for delaying the proceedings, but in a given
situation, it may lead to proceedings being sent back to
the original Court for filling in lacunae in the pleadings.
This cannot be permitted in the facts and circumstances
of the present case. As regards the merits of the
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amendment not being appreciated at the stage of
considering the application for amendment, there can be
no quarrel with the proposition. But, when it is found
that the basic approach of the appellate Court was
erroneous, the aspect of the merits of the amendment
being appreciated pales into insignificance.
19. Insofar as reliance placed on the judgment of
the Hon'ble Supreme Court in the case of Revajeetu
(supra) is concerned, although the Supreme Court has
indeed discussed the situation where amendments ought
to be allowed and that the Courts are generally liberal in
permitting amendments of written statement as
compared to amendments of the plaint, there are certain
factors that are enumerated while dealing with
applications for amendment. A perusal of the factors so
delineated in the aforesaid judgment would show that in
the facts and circumstances of the present case, the
amendment could not have been granted, even upon
imposition of costs.
20. In view of the above, it is found that the
impugned order is unsustainable. Accordingly, the writ
petition is allowed. The impugned order passed by the
appellate Court is quashed and set aside and the
application at Exhibit 18 is dismissed.
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21. Considering the fact that the agreement in
the present case pertains to the year 2010 and that the
trial Court had decreed the suit as far back as in the year
2015, the appellate Court is directed to dispose of the
appeal expeditiously and preferably within a period of
six months from today.
JUDGE
Prity
