Bombay High Court
Smt. Vanita Wd/O Waman Pande And Another vs Markand @ Manoj Sheshrao Pande Dead, ... on 13 September, 2024
2024:BHC-NAG:10972
-- 1 -- Judgment WP 4500.2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 4500 OF 2019
1. Smt. Vanita wd/o Waman Pande,
Age 35 years, Occu.: Agriculture Labourer
R/o Shiva (Savanga), Tahsil and District
Nagpur.
2. Shri Subhash s/o Ganpatrao Mondhe, .. Petitioners/
Age 38 years, Occu.: Agriculturist, (Original
R/o Khandala, Post Valni, Tahsil Nagpur Defendants)
(Rural), District Nagpur.
Versus
1. Markand @ Manoj Sheshrao Pande Deceased
(Died on 19.07.2017) Through his L.Rs. Original
Plaintiff
(a) Smt. Nalini wd/o Manoj @ Markand Pande
Age 47 years, Occu. Household,
(b) Ku. Pranshu d/o Manoj @ Markand Pande,
Age 24 years, Occu. Student, duly
represented through the power of
attorney holder No.1(a) Smt. Nalini wd/o
Manoj @ Markand Pande
(c) Ku. Aditi d/o Manoj @ Markand Pande,
Age 20 years, Occu. Student, duly Legal heirs of
represented through the power of Original
attorney holder No.1(a) Smt. Nalini wd/o Plaintiff/
Manoj @ Markand Pande Respondents
(d) Ku. Anushka d/oManoj @ Markand Pande,
age 16 years, Occu. student,
(e) Ku. Lawanya d/oManoj @ Markand Pande,
age 09 years, Occu. Student,
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Respondents No.1(d) and 1(e) minors
duly represented through their natural
guardian mother Smt.Nalini wd/o Manoj
@ Markand Pande Respondent No.1(a).
Respondent No.1(b) & 1(c) through their
power of attorney holder No.1(a)
Smt.Nalini wd/o Manoj @ Markand Pande.
.. Respondents
Respondent No.1(b) to (e) represented
through Respondent No.1(a) mother
Smt. Nalini wd/oManoj @ Markand Pande,
R/o 111, Gomati Colony, Nehru Nagar,
Bhopal (M.P)
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Ms.P.S.Sadavarte Advocate for Petitioners.
Mr.A.R.Dhoble, Advocate with Ms.Bushra Khan holding for
Mr.Raju Dhoble, Advocate for respondent No.1(a).
---------------------------------------------------------------------------
CORAM : ABHAY J. MANTRI, J.
DATED : 13/09/2024.
ORAL JUDGMENT (Per : Abhay J. Mantri, J.)
Rule. Rule is made returnable forthwith. Heard finally,
with the consent of the learned counsel, appearing for the parties.
(2) Being aggrieved by the order dated 03/04/2019, passed
below Exh.34, in Regular Civil Suit No.660/2015, by Learned 19 th Jt.
C.J.S.D., Nagpur, Whereby the application for amendment filed by the
respondents/original plaintiffs came to be allowed, the original
defendants have preferred this petition.
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(3) Learned Counsel for the petitioners vehemently argued
that the proposed amendment, which has sought to be incorporated in
the suit, could change the cause of action and, therefore, without
considering the said legal position, the trial Judge has allowed the
amendment application. He further submitted that the original plaintiff,
during his lifetime, has not taken any steps to amend the suit even
though he has moved an application for the addition of the parties
under Order I Rule 10 of the Civil Procedure Code (CPC), but he failed
to move the application for amendment. Therefore, the legal heirs of
the original plaintiff have no right to amend the plaint. He further
canvassed that issues were framed on 22/10/2018 (Exh.29). The
matter was listed for the evidence of the respondents. That means
after the commencement of the trial, the respondents had moved an
application to amend the Plaint, for which no Cogent reasons were
given as per the proviso of Order VI R 17 of the C.P.C.
(4) During the argument, he took me through the original
prayers in the suit, as well as the proposed amendment, which the
plaintiffs have sought by the amendment application. He further
submitted that no convincing reasons were given to amend the plaint.
As against, the reasons stated in the amendment application are
inconsistent with the proviso to Order VI Rule 17 of the CPC. Therefore,
he urged that passing of the order by the learned Trial Judge is
contrary to the provisions of the Law and liable to be set aside.
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(5) To buttress his submissions, he has relied on the
following judgments :-
1) Vikas s/o Prem Somkuwar vs. Kailas s/o Panjabrao Dunedar and
another 2019 (3) ALL MR 859.
2) Chander Kanta Bansal vs. Rajinder Singh Anand 2008(4) ALL MR
423.
3) Gajraj vs. Sudha and others II (2000) SLT 437.
4) Archana Ashok Amburle vs. Smt.Arpana Shankar Dudham and
others 2019 (3) ALL MR 768.
Relying on all the above judgments learned, Counsel for
the petitioners urge for allowing the petition.
(6) Per contra, the learned Counsel appearing for
respondents/original plaintiffs vehemently contended that after
considering the material before it, the trial Court rightly allowed the
application for amendment. Therefore, no interference is required in it.
He further argued that the legal heirs of the original plaintiff, after filing
the written statement by defendant No.2 during the preparation of the
affidavit of evidence, plaintiffs, i.e. legal heirs of the original plaintiff,
realised that it was necessary to amend the suit. Therefore, they have
moved an application. The learned trial Court has rightly considered the
said facts and passed the impugned order; thus, no interference is
required in it.
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(7) In order to substantiate his arguments, he has relied on
the judgment of the Apex Court in the case of Rajesh Kumar Aggarwal
and others vs. K.K.Modi and others (2006) 4 Supreme Court Cases
385 and more particularly pointed out paras 14 to 20 of the said
judgment and submitted that while considering the application for
amendment, it is necessary to determine the real question in
controversy between the parties, provided it does not cause injustice or
prejudice to the other side and urges for dismissal of the petition.
(8) I have appreciated the rival submissions of the parties.
Perused the impugned order, record and judgments relied upon by the
learned Counsel for the respective parties.
(9) At the outset, it appears that on 22/06/2015, the original
plaintiff, Makrand, filed suit for declaration and permanent injunction.
Thereafter, on 10/04/2017, the original plaintiff filed an application
under Order I Rule 10 of the CPC for adding the proposed respondent
No.2 in the suit. In the said application, the plaintiff has categorically
stated that on 27/02/2017, he learned that defendant No. 1 Vanita
Waman Pande had sold some portion of the suit property to one
Subhash Ganpatrao Mondhe. Therefore, he wants to add him as
defendant No.2. During the pendency of this application and suit, on
19/07/2017, the original plaintiff, Markand, expired. Thus, his legal
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heirs were brought on record on 06/09/2017. On 16/09/2017, the
application for the addition of the party was allowed, and thereby,
plaintiffs added Subhash Ganpatrao Mondhe as defendant No.2, who
filed a written statement and counter-claim on 16/04/2018.
(10) It further appears that on 22/10/2018, issues were
framed, and the matter was posted to adduce the plaintiffs' evidence.
Then, while preparing the affidavit of evidence, the plaintiffs realised
that it had become necessary to claim the relief of declarations in
respect of the suit property and the sale deed executed by defendant
No.1 in favour of defendant No.2 as a sham, bogus and illegal. It is
further contended that in view of the subsequent development that
occurred during the pendency of the suit, it is necessary for them to
bring the said facts on record, and, therefore, they have moved the
application for amendment.
(11) A bare perusal of the application for amendment, it
appears that the plaintiffs have moved the said application on two
grounds viz.(i) after getting the knowledge from reading the counter-
claim, the plaintiffs have realised to amend the suit by incorporating
the proposed paras and prayer clauses and (ii) he wants to bring
subsequent development that occurred during the pendency of the suit,
on record. However, on scrutiny of the record, it seems that on
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27/02/2017, the original plaintiff got the knowledge about the
execution of the sale deed by defendant No.1 in favour of defendant
No.2. At the time of filing of the application under Order I Rule 10 of
the CPC the original plaintiff has not taken any steps to amend the
suit/plaint. Besides, plaintiffs have not assigned any reason for non-
amending the plaint when the original plaintiff knew about the
execution of the sale deed. The plaintiffs have not explained in that
regard.
(12) Secondly, it is evident that the trial has commenced.
Therefore, as per the proviso of Order VI Rule 17 of the CPC, the party
to the proceeding must satisfy the Court that, in spite of due diligence,
the party could not have raised the matter before the commencement
of the trial. However, on perusal of the application, it does not appear
that the plaintiffs have given reasons for non-filing the application for
amendment before the commencement of the Trial. In fact, it was
imperative for the original plaintiff to specify reasons for the non-filing
of the application for amendment prior to the commencement of the
trial when he knew about the execution of the sale deed on
27/02/2017.
(13) It is apparent from the wording of Order VI Rule 17 of
the CPC that the prayer for amendment is generally required to be
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allowed if the amendment is required to effectively and properly
adjudicate the controversy between the parties and to avoid multiplicity
of proceedings. However, as per the proviso of the said Rule, if the trial
has commenced, then no application for amendment shall be allowed
unless the Court comes to the conclusion that, in spite of due diligence,
the party could not have raised the said matter before the
commencement of the trial. Undisputedly, in the case at hand, the trial
has commenced. The plaintiffs failed to give reasons that, in spite of
due diligence, they could not have moved the application for
amendment of the pleadings before the commencement of the trial
when the original plaintiff had got knowledge about the execution of
the sale deed on 27/02/2017 itself, i.e. prior to framing of issues.
Therefore, I do not find substance in the application to permit the
respondents to amend the plaint.
(14) Moreover, it seems that, by way of the proposed
amendment, the plaintiffs want to change the nature of the suit and
cause of action, which is not permissible in law. Thus, it appears that
without considering the settled legal position, the learned trial Court
erred in passing the impugned order, observing that it would not cause
any prejudice to the rights of the defendants and to avoid the
multiplicity of the proceedings and the Court cannot go into the merits
of the case. However, while deciding the amendment application, the
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learned trial Court ignored the mandate given in proviso to Order VI
Rule 17 of the CPC and vaguely observed, as referred to above
furthermore, when the plaintiffs or legal heirs of the plaintiff knew
about the execution of the sale deed before framing the issues as well
as filing the evidence.
(15) As discussed above, it appears that in the present
petition, the moot question arises whether plaintiffs are entitled to
carry out the proposed amendment. Therefore, the question of going
into the merit of the matter does not arise at all. In view of the same,
the observations made in the case of Rajesh Kumar Aggarwal (supra)
are hardly of any assistance to the respondents in support of their
contentions. Per contra, the dictum laid down in the judgments relied
upon by the learned Counsel for the petitioners applies to the case in
hand.
(16) In fact, while determining the question to permit the
plaintiffs to amend the plaint after the commencement of trial, the
learned trial Judge has to record a finding whether the Court comes to
the conclusion that in spite of due diligence, the plaintiffs could not
have sought amendment before the commencement of trial but no
finding on the said point has been recorded. The learned trial judge did
not consider the mandate of the proviso to Order 6 Rule 17 of the CPC
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nor the facts in that regard while deciding the application for
amendment. Thus, it appears that the learned Judge has erred in
allowing the application for amendment without recording the finding
about the compliance of the mandate conferred in the proviso to Order
VI Rule 17 of the CPC. As such, in my view, the impugned order is not
sustainable in the eyes of the law and is liable to be set aside.
(17) In the aforesaid background, the petition stands allowed
in terms of prayer clause (ii). No order as to costs.
[ ABHAY J. MANTRI, J. ]
KOLHE
Signed by: Mr. Ravikant Kolhe PAGE 10 OF 10
Designation: PA To Honourable Judge
Date: 01/10/2024 19:44:04
