Bombay High Court
Manikrao S/O Chintaman Ingle vs Umesh S/O Manohar Thokal on 14 September, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 7223 OF 2019
Manikrao Chintaman Ingle
-Vs.-
Umesh Manohar Thokal
WRIT PETITION NO. 4982 OF 2022
Manikrao Chintaman Ingle
-Vs.-
Umesh Manohar Thokal
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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.P. S. Gawai, counsel for the petitioners in both petitions.
Mr. Kartik Rao, counsel h/f Mr. M.G.Sarda, counsel for the
respondent sole in both petitions..
CORAM : MANISH PITALE, J.
DATE : 14.12.2022
Heard the learned counsel for the rival parties.
2. Both these writ petitions are filed by a party,
who is plaintiff in one matter and defendant in another.
The petitioner herein has filed a suit for possession and
mesne profit against the respondent, while the
respondent has filed a suit for specific performance
against the petitioner.
3. In the suit for possession and mesne profit
where the petitioner is the plaintiff, he had moved an
application seeking amendment of the plaint in order to
add certain pleadings, which according to him would
assist the Court below in determining the real questions
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in controversy between the parties. The application was
moved in Regular Civil Suit No.174 of 2013 at Exhibit-
20 for amendment of the plaint in order to add the
aforesaid pleadings. The same was moved at a stage
when issues were framed, but affidavit in evidence on
behalf of the plaintiff (petitioner) was yet to be
tendered. The learned counsel for the petitioner
submits that in this context if the impugned order is
perused, it is found that the application has been
rejected only on the ground that the petitioner failed to
demonstrate due diligence for moving such an
application, as the trial had already commenced. It was
submitted that this was based on a factually incorrect
basis because the trial had yet to commence.
4. On the last occasion this petition was adjourned
to verify as to whether the trial had indeed commenced
in the said case. Upon verifying, the learned counsel for
the respondent fairly submits that the trial is yet to
commence.
5. Thus, the very basis of the impugned order is
knocked out because the entire reasoning adopted by
the Court below for rejecting the application for
amendment of plaint filed on behalf of the petitioner
was based on operation of proviso to Order VI Rule 17
of the Code of Civil Procedure. The said proviso comes
into operation only if the trial has commenced. The
trial not having commenced in the present case clearly
demonstrates that the impugned order is erroneous.
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Even otherwise, this Court has verified the pleadings in
the plaint and the proposed amendment in the
application for amendment. This Court is convinced
that the amendment would be necessary for
determining the real questions in controversy in the said
suit. Accordingly, it is found that Writ Petition No.4982
of 2022, deserves to be allowed.
6. Insofar as Writ Petition No.7223 of 2019 is
concerned, there are two orders made subject matter of
challenge. By the impugned order dated 18/09/2019,
application at Exhibit-32 filed by the petitioner, who is
the defendant in Regular Civil Suit No.540 of 2012, for
de-exhibiting the particular document, has been
rejected. There is no provision in the Civil Procedure
Code for de-exhibiting a document and therefore, it
cannot be strictly said that there is any error committed
by the Court below while passing the impugned order
dated 18/09/2019, rejecting Exhibit-32. Yet, the issue
sought to be raised on behalf of the petitioner can be
kept open in the interest of justice, to be agitated at the
stage of final arguments.
7. By the said Writ Petition No.7223 of 2019, order
dated 18/09/2019, rejecting application at Exhibit-31 is
also challenged. By the said application at Exhibit-31,
the petitioner as the defendant in Regular Civil Suit
No.540 of 2012, had sought amendment of his written
statement. By the proposed amendment, the petitioner
sought to state certain facts and also certain pleadings
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were sought to be added to claim that the respondent
i.e. the plaintiff was not entitled for grant of decree of
specific performance.
8. It is an admitted position that in the said suit,
trial had already been commenced and therefore,
proviso to Order VI Rule 17 of the Code of Civil
Procedure would certainly operate. In other words, the
petitioner would have to show as to why he could not
have taken such pleadings or sought to add the same by
way of amendment, at an earlier stage by showing due
diligence.
9. In this regard, the learned counsel for the
petitioner emphasized that the aforesaid suit for specific
performance filed by the respondent and the suit for
possession and mesne profit filed by the petitioner are
being tried before the same Court and the facts are so
intertwined that when the prayer for amendment of
plaint in the suit filed by the petitioner is being granted,
it would be in the interest of justice to allow the
amendment of the written statement, notwithstanding
the fact that the trial had indeed commenced in the suit
filed by the respondent.
10. The learned counsel for the petitioner has placed
reliance on the judgment of the Hon'ble Supreme Court
in the case of Revajeetu Builders and Developers v.
Narayanswamy and sons and others, reported in (2009)
10 SCC 84, particularly paragraph 63 thereof.
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11. The learned counsel appearing for the
respondent has vehemently opposed the contentions
raised on behalf of the petitioner and it is submitted that
the petitioner has not made out a case for grant of
amendment, as the prayer for grant of amendment is hit
by proviso to Order VI Rule 17 of the Code of Civil
Procedure.
12. This Court has considered the contentions of the
rival parties. In paragraph 63 of the aforesaid judgment
in the case of Revajeetu Builders and Developers v.
Narayanswamy and sons and others (supra), the
Hon'ble Supreme Court has held as follows:
"Factors to be taken into consideration while
dealing with applications for amendments
63. On critically analyzing both the English and
Indian cases, some basic principles emerge which
ought to be taken into consideration while allowing
or rejecting the application for amendment.
(1) Whether the amendment sought is
imperative for proper and effective adjudication of
the case;
(2) whether the application for amendment
is bona fide or mala fide;
(3) the amendment should not cause such
prejudice to the other side which cannot be
compensated adequately in terms of money;
(4) refusing amendment would in fact lead
to injustice or lead to multiple litigation;
(5) whether the proposed amendment
constitutionally or fundamentally changes the nature
and character of the case; and
(6) as a general rule, the court should
decline amendments if a fresh suit on the amended
claims would be barred by limitation on the date of
application.
These are some of the important factors which may
be kept in mind while dealing with application filed
under Order 6 Rule 17. These are only illustrative
and not exhaustive."
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13. No doubt in the present case trial in the suit filed
by the respondent had indeed commenced and that the
proviso to Order VI Rule 17 of the Code of Civil
Procedure would operate. Nonetheless, in the above
mentioned judgment, the Hon'ble Supreme Court has
indicated that the Court may take into consideration the
factors enumerated in paragraph 63 as quoted above in
the interest of justice, to ensure that the real questions
in controversy between the parties are considered and
decided by the Court in a comprehensive manner.
Applying the factors enumerated herein above, this
Court is of the opinion that the amendment of written
statement sought on behalf of the petitioners is indeed
imperative and for proper and effective adjudication of
the case, apart from the fact that it cannot be said to be
mala fide. Equally, the respondent will not suffer any
prejudice if such amendment is granted. In fact, the
Court below would be assisted in determining the real
questions in controversy between the parties on merits.
14. Accordingly, Writ Petition No.7223 of 2019,
deserves to be partly allowed.
15. In view of the above, Writ Petition No.4982 of
2022 is allowed. The impugned order dated
07/01/2020 is quashed and set aside. The application
for amendment filed by the petitioner at Exhibit-20 is
allowed in terms of the prayer made therein. The
amendment be carried out within three weeks from
today.
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16. Writ Petition No.7223 of 2019 is partly allowed.
While the order dated 18/09/2019, rejecting the
application at Exhibit-32 is not interfered with, it is
observed that the issue sought to be raised therein may
be raised on behalf of the petitioner at the stage of final
hearing of the suit. The impugned order dated
18/09/2019, passed by the Court below at Exhibit-31 is
quashed and set aside. The application for amendment
moved at Exhibit-31 is allowed in terms of the prayer
made therein. Accordingly, the written statement shall
be amended by the petitioner before the Court below
within three weeks from today.
17. Considering that the suits were filed in the year
2012 and 2013, it would be appropriate that the Court
below decides the suit expeditiously and preferably
within one year from today.
JUDGE
Signed By:GHANSHYAM S
KHUNTE
Signing Date:15.09.2022 19:20
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