Mrs. Juliana Joseph D'Mello vs Mr. Tutukulla Vayankattasubhaia ...
2022 Latest Caselaw 3007 Bom

                       (39)-WP-10074-18.doc.


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          Digitally
                                       CIVIL APPELLATE JURISDICTION
          signed by
          BALAJI
BALAJI    GOVINDRAO
GOVINDRAO PANCHAL

                                       WRIT PETITION NO.10074 OF 2018
PANCHAL   Date:
          2022.03.30
          10:51:23
          +0530




                       Mrs. Juliana Joseph D'mello                        ..Petitioner
                             Versus
                       Mr. Tutukulla Vayankattasubhaia Mallayya
                       and Anr.                                          ..Respondents

                       Mr. R. V. Govilkar a/w Shaba N. Khan i/by Govilkar & Associates,
                       Petitioner.
                       Mr. Prabhanjan Gujar, for the Respondents.


                                                   CORAM : NITIN W. SAMBRE, J.

DATE : 28th MARCH, 2022 P.C.

1. Heard respective counsels

2. Mr. R. V. Govilkar, learned counsel for the petitioner/ appellant would invite my attention to the nature of pleadings which the petitioner/plaintiff intend to insert in the plaint i.e. Special Civil Suit No.85 of 2008. According to him, the Court below while dealing with application Exh.15 for amendment of plaint has consciously recorded findings that the amendment is necessary for determining real controversy between the parties. According to him, once such findings are recorded, the Appellate Court ought to have allowed the amendment may be by putting the petitioner to stringent conditions. Apart from above, his contentions are already foundation in relation to the Plot No.65 was pleaded. What is

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sought to be amended is instead of Plot No.65, the petitioner intend to substitute about Plot Nos.8 and 9, in relation to which he claims that the information was received by the petitioner during pendency of the appeal. As such, according to him, since the amendment is necessary, same be allowed by this Court by quashing the order impugned.

3. Mr. Prabhanjan Gujar would oppose the prayer. As according to him, there is failure of due diligence on the part of the petitioner/plaintiff. So as to substantiate said contention, he has drawn support from the observations of the judgment of Trial Court whereby suit claim was dismissed.

4. Considered submissions.

5. The petitioner initiated Special Civil Suit No.85 of 2008 for removal of encroachment, possession, declaration and permanent injunction. The suit property mentioned in the plaint is Plot No.65 which the petitioner/plaintiff claimed to be owner of since 1989.

6. After the suit was adjudicated, the suit was dismissed on 13th April, 2009.

7. The petitioner feeling aggrieved preferred Civil Appeal No.803 of 2012 in which he has taken out aforesaid application i.e.

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Exh.15 for amendment of plaint. By way of amendment an insertion sought to be made original Plot No.65 now claimed by defendant as Plot Nos.8 and 9. The other necessary words sought to be inserted in paragraphs 7 and 7(a).

8. The Trial Court while dealing with the suit claim of the petitioner/plaintiff has specifically framed an issue whether the defendants/respondents have encroached on the suit Plot No.65 which the petitioner now intend to change Plot Nos.8 and 9.

9. The fact that the dispute is in relation to Plot Nos.8 and 9 was well within the knowledge of the present petitioner/plaintiff as is apparent from the pleadings in the plaint paragraph 9. Apart from above, the title-deeds in relation to the property viz. Plot Nos.65, 8 and 9 were very much produced by the respondent during the trial and the petitioner had enough knowledge about the same as is apparent from contents of Exh.57, 94 and 109.

10. As such, petitioner should have taken steps at the relevant time when the aforesaid documents were very much produced before the Trial Court.

11. By way of afterthought, petitioner has come out with plea that the details about the property were collected during the pendency of the appeal which has prompted the petitioner to take out application for amendment.

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 (39)-WP-10074-18.doc.

12. As such, the grounds narrated in application for amendment are contrary to the own pleadings of the petitioner in the plaint, so also the documents which were part of the record of the trial of which the petitioner had sufficient notice.

13. That being so, it was expected by the petitioner to be diligent while agitating the claim before the Trial Court.

14. The Appellate Court while rejecting the amendment has observed that certain admissions given by the petitioner would washed away, in case, if the amendment is granted and as such has rightly proceeded to the reject the prayer for amendment. Since the petitioner has failed to satisfy the principle of due diligence as could be inferred from the observations made herein-before in the light of the law laid down by the Apex Court in the matter of Vidyabai and Others Vs. Padmalatha and Anr. reported in (2009) 2 SCC 409, I hardly see any reason which warrants interference in the order impugned.

15. The petition as such fails, dismissed.

16. Suit shall not be proceeded with for a period of four weeks.

                                           [NITIN W. SAMBRE, J.]



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