Bombay High Court
Yamutai @ Pramila Ramrao Karale ... vs Ashok Gajanan Karale And Others on 12 December, 2022
Bench: V. G. Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2490/2019
1. Yamutai @ Pramila Ramrao Karale,
aged about 82 years, Occ. Household,
(Died on 06.10.2013), with only legal
heir.
2. Smt. Manda wd/o. Vilas Thorat,
Aged about 54 yrs., Occ. Household,
R/o. Ayodhya Nagar, Balapur Road,
Akola, Tah. & Dist. Akola.
Mb. 9822901428
... PETITIONERS
(Ori. Pltff.)
VERSUS
1. Ashok Gajanan Karale, Aged
about 52 yrs, Occ. Agriculturist,
R/o. Deshmukhpura Shegaon,
Tal. Shegao, Dist. Buldhana.
2. Sau. Tilottam Vikas Patil, aged
about 52 yrs., Occ. Tax Advisor,
R/o. 33/59, Savitri Sadan,
behind S.B.I. Jalgaon, Tq. & Dist.
Jalgaon.
3. Vijay Bhaurao Deshmukh, aged
about 53 yrs., Occ. Agri. &
Business, R/o. Fule Nagar,
Shegaon, Tq. Shegaon, Dist.
Buldhana.
2
4. Smt. Shakuntala Gajanan Karale,
Aged about 85 yrs. Occ.
Household,
R/o. Deshmukhpura
5. Smt. Shakuntalal Gajanan
Karale, aged about 85 yrs., Occ.
Household, R/o. Deshmukhpura
Shegaon, Tq. Shegaon, Dist.
Buldhana.
6. Sau. Chhaya Dinkar Kastode,
aged about 53 yrs., Occ.
Household Work, R/o. Nilal Park,
Jalgaon, Tq. & Dist. Jalgaon,
Khandesh.
7. Sheela Krushnarao Deshmukh,
aged about 50 years, Occ.
Household Work, R/o. At Post
Umara, Tq. Sangrampur, Dist.
Buldhana.
... RESPONDENTS
(Ori. Deftts.)
Mr. S.W. Deshpande, Advocate for petitioners.
Mr. N. Dhoot, Advocate h/f Mr. N. R. Saboo, Advocate for
respondent Nos. 1, 4 to 7.
Mr. P. Deshpande, Advocate h/f Mr. D.L. Khapre, Advocate for
respondent No.3.
______________________________________________________________
CORAM : VINAY JOSHI, J.
DATE OF JUDGMENT : 12.12.2022.
ORAL JUDGMENT :
RULE. Rule is made returnable forthwith.
2. Heard finally by consent of respective parties.
3. This petition is of original plaintiff challenging the order of
rejection of amendment by the Trial Court vide order dated
28.02.2019. The plaintiff sought amendment in the plaint seeking
additional relief on the basis of sale transaction took place during the
pendency of suit. By way of proposed amendment, the plaintiff sought
to seek additional relief that a sale-deed dated 04.06.2012 executed by
defendant No. 1 along with defendant Nos. 4 to 7 in favour of the
defendant No. 3 be declared as null and void. The Trial Court has
rejected the application on the ground that the additional prayer is
barred by law of limitation. It is held that the plaintiff is seeking relief
of declaration that the sale-deed is null and void. The Trial Court
observed that the plaintiff has knowledge of sale-deed in the year 2014
and thus, the amendment which is sought after three years is barred by
limitation.
4. Initially, the plaintiff has filed suit for partition, separate
possession and injunction. The suit was filed against only two
defendants. During the pendency of suit (RCS No. 54/2012) original
defendant No. 1 along with subsequently added defendant Nos. 4 to 7
have sold the suit property in favour of defendant No. 3 vide sale-deed
dated 04.06.2012. After getting knowledge of pendant light
transaction, the plaintiff has initially applied in the year 2014 for
addition of purchaser - defendant No. 3 as a party to the suit in terms
of Order I Rule 10 of the Code of Civil Procedure ('CPC'). The said
application was allowed by the Trial Court vide order dated 04.09.2014
at Exhibit 42. It reveals that thereafter once again plaintiff has filed
another application for addition of defendant Nos. 4 to 7 which appears
to have been allowed by the Trial Court.
5. Being aggrieved by order dated 04.09.2014 (Exhibit 42)
passed by the Trial Court for addition of purchaser, original defendant
Nos. 1 and 2 have filed writ petition No. 7177/2014 which was
withdrawn on 04.10.2016. In the wake of such position, the plaintiff
filed existing amendment application (Exhibit 86) on 19.07.2018
seeking amendment about additional relief pertaining to sale-deed
dated 04.06.2012. The amendment is based on the subsequent sale-
deed dated 04.06.2012 and the relief of declaration to that effect. The
Trial Court rejected amended additional relief only on the count that
the amendment is time barred. It is not in dispute that the plaintiff was
aware about sale-deed dated 04.06.2012 in the year 2014 itself, since
plaintiff has applied for addition of purchasers in the suit which was
also allowed by this Court vide order dated 04.09.2014. Even if it is
assumed that the plaintiff was unaware of the transaction on the date
of sale-deed, however the plaintiff's own application for addition of
party is sufficient to demonstrate that at the time of filing application
(Exhibit 42) for addition of parties (filed on 26.06.2014), plaintiff was
aware about the sale transaction. Further, it is not in dispute that the
present amendment application is filed on 19.07.2018 that is after
three years from acquiring the knowledge as per plaintiff's own case.
6. The only limited issue involves is whether the plaintiffs can
be permitted to carry the amendment which is barred by limitation. On
this point, the learned counsel appearing for the plaintiff would submit
that the order of addition of party dated 04.09.2014 was challenged by
the defendants in writ petition No. 7177/2014 and it was withdrawn
on 04.10.2016. According to the plaintiff, due to pendency of said writ
petition, the plaintiff was precluded from seeking amendment. As a
matter of fact, this Court has not stayed proceeding of the Trial Court in
writ petition No. 7177/2014. Even if, there is stay, still the plaintiff can
file amendment application to the Trial court, if it would become time
barred. The period of limitation once commenced in the year 2014,
cannot be stopped by any eventuality. Pendency of writ petition is no
ground to exclude the time.
7. It is argued that the plaintiff was not allowed to file
amendment application. It is also argued that the plaintiff was widow.
She was unaware about the proceeding.
8. There is no question of judicial discretion, if original suit or
claim is time barred. Section 5 of the Indian Limitation Act would not
apply to the original suit. Needless to say that all amendments, if
allowed, would relate back to the date of suit and thus, the Trial Court
has rightly rejected amendment.
9. In view of above, writ petition carries no merits, hence
stands dismissed.
(VINAY JOSHI, J.)
Gohane
JITENDRA
BHARAT
GOHANE
Digitally signed by
JITENDRA BHARAT
GOHANE
Date: 2022.12.14
17:17:21 +0530
