Bombay High Court
Pradip Ramgopalji Rathi Through Poa ... vs Rajkumar Alias Rajabhau Baburuwan ... on 24 September, 2024
2024:BHC-AUG:22677
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8596 OF 2024
. Pradip s/o Ramgopalji Rathi,
Age: 76 Years, Occu.: Agri.,
R/o. Lulla Nagar, Kondhva, Pune
Through: His Power of Attorney Holder-
Rajesh Ghanshyamdasji Lathi,
Age: 56 Years, Occu.: Business,
R/o. Near Central Hanuman,
Old Bhaji Mandi, Latur,
Dist. Latur .. Petitioner
(Ori. Plaintiff)
Versus
. Rajkumar @ Rajabhau s/o. Baburuwan Patil,
Age: 52 Years, Occu.: Agri.,
R/o.: Bhadi, Tq. & Dist.: Latur .. Respondent
(Orig. defendant) / Non-applicant)
...
Advocate for Petitioner: Smt. Anjali Dube
Advocate for Respondent: Mr. V. G. Kodale
...
CORAM: ARUN R. PEDNEKER, J.
DATE: 24.09.2024
JUDGMENT:
1. Heard.
2. Rule. Rule returnable forthwith. With consent of the
parties, the matter is taken up for final hearing.
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3. By the present petition, the petitioner challenges order
dated 02.04.2024, passed on Exhibit 24, in Regular Civil Suit No.555
of 2022, wherein the application filed by the plaintiff / Petitioner for
amendment of the plaint under Order 6 Rule 17 of the CPC is
rejected.
4. The case of the plaintiff in brief is as under.
A] The plaintiff filed the Regular Civil Suit No.555 of 2022
before the learned Civil Judge, Senior Division, Latur for possession
of the encroached area. In the plaint, the suit property is mentioned
as Block No.5 admeasuring 03 Hector 28 Are as per 7/12 extract.
B] In the amendment application, it is contended that, an
area of land admeasuring 0 Hector 42 Are adjacent to the land of
Omkar Pratishthan and to the east side of the suit land was
subtracted from ownership of the plaintiff by way of acquisition and
the mutation entry no.791 was sanctioned on 24.07.2022. As per the
mutation entry no.791, the name of the plaintiff is mutated on 7/12
extract to the extent of 2 Hector 86 Are and, hence, the plaintiff filed
application for amendment of the plaint.
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C] It is contended by the plaintiff that the amendment does
not change the nature of the suit, so also, the boundaries of the land
owned by the plaintiff does not change. The amendment is necessary
in the interest of justice.
D] The said amendment is objected to by the defendant
contending that the plaintiff had knowledge about the acquisition in
the year 2013 and the award was sanctioned in the year 2019,
mutation was also effected on 24.07.2022, moreover, the plaintiff
has withdrawn the compensation prior to the filing of the suit. The
plaintiff has full knowledge about deduction of land. The plaintiff
has intentionally and falsely shown his area as 03 Hector 28 Are and
the plaintiff has falsely shown encroachment on 7 Are land.
It is contended that the affidavit evidence of the plaintiff
is filed. It is stated that his land to the extent of 3 Hector 28 Are has
been obtained by him as per the court decree.
It is further contended that measurement officer TILR
has given false map, because at the time of measurement ring road
from the land has gone under the road, but he has not shown the
above said ring road and area of ring road in the measurement also.
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E] Considering the rival contentions, the learned trial court
observed that the plaintiff has filed the suit for recovery of
possession and mesne profit. The plaintiff has instituted the suit on
27.07.2022 and he has mentioned suit property as 3 Hector 28 Are
land out of total 10 Hector 40 Are land from Block No.5. The suit
property is admeasuring 3 Hector 28 Are. The suit is now fixed for
hearing and the evidence affidavit of the plaintiff has come on
record. The trial court has observed that perusal of 7/12 extract of
Gat No.5 shows that the area of Block No.5 has been acquired by the
Government on 24.07.2022. Area of Block No.5 has been subtracted
from the western side. As per the pleadings of the plaintiff
encroachment has been made from east-north corner of the suit
property. It is further observed that, although, acquisition is taken
prior in point of time and the plaintiff was having knowledge of the
same he has not mentioned anything about land acquisition and
exact position of area of land block no.5 till the date of application
by way of amendment. Prior to hearing he has not disclosed this fact
to the court. Plaintiff has not taken any steps before framing of
issues. The court held that the plaintiff has not given
any reasonable explanation as to why the application
for amendment could not be made before
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commencement of the trial and the proposed amendment completely
and fraudulently changes the nature of the stand taken or it would
completely set-up a new cause. Despite the knowledge of the land
acquisition and award in respect of the suit property, the plaintiff has
remained silent till 2024. The court observed that the basic rule of
every litigation is that right of the parties must be determined on the
basis of the date of filing of the suit. However, court can take notice
of subsequent events in order to shorten litigation, to preserve,
protect and safeguard rights of both the parties and subserve the
ends of justice. The events which is sought to be brought on record
are not subsequent. The court has refused to entertain the
application for amendment of the plaint and rejected the same.
5. Challenging the above order passed by the trial court it
is contended by the learned counsel for the petitioner that the
amendment does not change the nature of the suit as the
encroachment is on the eastern side whereas the acquisition of the
property is taken place from the western side. On pleading of
acquisition being taken on record, the area of the plaintiff would
stand reduced of the western side to the extent of acquisition. The
original boundaries and the original property would remain the same
for the purpose of demarcation of the property. No prejudice would
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be caused to the respondent. The amendment would merely explain
the case of the plaintiff.
6. Per contra, learned counsel for the respondent /
defendant submits that the petitioner was fully aware of the
acquisition and that he has failed to bring it to the notice of the court
the fact of acquisition. The learned counsel further submits that the
map produced by the plaintiff is erroneous and prejudice would be
caused to the respondent / defendant in the event the amendment is
allowed.
7. The learned counsel for the respondent relies upon the
Judgment of the Hon'ble Apex Court in the case of Mashyak
Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and
others, AIR 2013 SC 3188, wherein the Hon'ble Apex Court has held
that belated amendment on the undisputed fact was not permissible
in the facts of that case, where the plaintiff therein was aware of
transaction before filing of the suit and no relief was sought against
the transaction at the time of filing of the suit. It was sought to be
introduced by the amendment under Order 6 Rule 17 of the CPC at a
late date. The Hon'ble Apex Court in the above Judgment has held
that it was not permissible to do so.
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8. Having considered the rival submissions, it is required to
be noted that Order 6 Rule 17 of the CPC deals with the amendment
of pleadings and it is quoted below for ready reference:-
"17. Amendment of pleadings.--The Court may at any
stage of the proceedings allow either party to alter or
amend his pleadings in such manner and on such terms
as may be just, and all such amendments shall be made
as may be necessary for the purpose of determining the
real questions in controversy between the parties:
Provided that no application for amendment shall
be allowed after the trial has commenced, unless the
Court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter
before the commencement of trial."
9. It is a settled law that the court would be liberal in
granting amendment, unless injustice would be caused to the other
party, if, the amendment is allowed or that the amendment is not
necessary to decide the controversy in issue.
10. The Hon'ble Supreme Court in the case of Life Insurance
Corporation of India v. Sanjeev Builders Private Limited and Another,
Civil Appeal No. 5909 of 2022 dated 01.09.2022, has explained the
position of law on amendment of pleadings as under:
"70. ..... (ii) All amendments are to be allowed which
are necessary for determining the real question in
controversy provided it does not cause injustice or
prejudice to the other side. This is mandatory, as is
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apparent from the use of the word "shall", in the latter
part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper
adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the
other side,
(b) by the amendment, the parties seeking amendment
does not seek to withdraw any clear admission made by
the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim,
resulting in divesting of the other side of a valuable
accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be
allowed unless
(i) by the amendment, a time barred claim is sought to
be introduced, in which case the fact that the claim
would be time barred becomes a relevant factor for
consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid
defence.
(v) In dealing with a prayer for amendment of
pleadings, the court should avoid a hypertechnical
approach, and is ordinarily required to be liberal
especially where the opposite party can be compensated
by costs.
(vi) Where the amendment would enable the court to
pin-pointedly consider the dispute and would aid in
rendering a more satisfactory decision, the prayer for
amendment should be allowed.
(vii) Where the amendment merely sought to introduce
an additional or a new approach without introducing a
time barred cause of action, the amendment is liable to
be allowed even after expiry of limitation.
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(viii) Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars in
the plaint.
(ix) Delay in applying for amendment alone is not a
ground to disallow the prayer. Where the aspect of delay
is arguable, the prayer for amendment could be allowed
and the issue of limitation framed separately for
decision.
(x) Where the amendment changes the nature of the
suit or the cause of action, so as to set up an entirely
new case, foreign to the case set up in the plaint, the
amendment must be disallowed. Where, however, the
amendment sought is only with respect to the relief in
the plaint, and is predicated on facts which are already
pleaded in the plaint, ordinarily the amendment is
required to be allowed.
(xi) Where the amendment is sought before
commencement of trial, the court is required to be
liberal in its approach. The court is required to bear in
mind the fact that the opposite party would have a
chance to meet the case set up in amendment. As such,
where the amendment does not result in irreparable
prejudice to the opposite party, or divest the opposite
party of an advantage which it had secured as a result of
an admission by the party seeking amendment, the
amendment is required to be allowed. Equally, where
the amendment is necessary for the court to effectively
adjudicate on the main issues in controversy between
the parties, the amendment should be allowed. (See
Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC
OnLine Del 1897)"
11. The Hon'ble Supreme Court has held in the above case
of Life Insurance Corporation of India (supra) that the amendment
application has to be allowed if the amendment is required for
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effective and proper adjudication of the controversy between the
parties and that the amendment does not result in injustice to the
other side. Unless the amendment changes the nature of the suit or
introduce a time barred claim or changes the nature of the suit and
that the court should not be hypertechnical in it's approach in
allowing amendment to pleadings.
12. In the amendment application, the plaintiff has
contended as under:
"03) That, an area of land 00-H.42-R. adjacent to the
land of "Omkar Pratishthan" & to theeast side of suit
land. That, an area of 00-H.42-R. was subtracted from
ownership of the plaintiff, vide mutation entry No.791
sanctioned on 24/07/2022, after filing of suit. Above
referred area of 00-H,0.42-R. is acquired for ring road
Part-III and accordingly an entry to that, effect was
made in 7/12 extract of land block No.05, of Bhatkheda,
as such now the area standing in the name of plainitff is
02-H. 86-R. Therefore, suitable amendment in the plaint
is necessary to be made in the plaint in Para No. 01 of
the plaint.
04) That, on page No.02 Para No. 01, Line No. 02 &
03, after the wrods to the extent of, by deleting "03-H.
28-R.", area of "02-H. 86-R." is necessary to be inserted.
05) That, the boundaries of land owned by plaintiff
does not charge due reduction in area. The area under
encroachment for which the suit is filed and possession
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is sought, is not effected & not require any change,
therefore, the plaintiff does not require any change in
the map annexed to be plaint."
13. In the instant case, the petitioner has filed the suit for
recovery of possession and mesne profits of the encroached portion
admeasuring 7 Are situated at north-west corner of block no.5 of
Bhatkheda. The petitioner has also produced a map with the suit
indicating the encroached portion. The petitioner has also given the
boundaries of the suit property owned by him along with
boundaries.
14. It is also contended that, at the time of filing of the suit,
in the 7/12 extract and 8A extract, land owned by the plaintiff /
petitioner reflected the total area of 3 Hector 28 Are and that the
acquisition proceedings were carried out in respect of the land of the
plaintiff to the extent of 42 Are; yet the entry of the same was not
reflected in the government record. Subsequent to the filing of the
suit the revenue record in respect of block no.5 was corrected on
24.07.2022 vide mutation entry no.791. In view of the subsequent
development, the application was moved under Order 6 Rule 17 to
make amendment to the plaint.
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15. It is to be noticed that the alleged encroachment is
caused by the defendant on the northwest side and the land of the
plaintiff is acquired from the east-west side, as such, bringing on
record the correct measurement of area the boundaries towards the
east-west side do not change the nature of the suit or the original
boundaries of the suit property. Only the acquired lands would stand
deducted on the east-west side to the extent of acquisition. As
regards the boundary of the petitioner's land from the side of the
encroachment remains the same.
16. Thus, for effective decision on the suit the amendment is
necessary. No prejudice can be caused to the defendant because no
new facts are introduced and only the suit property is explained with
greater details. Prima faice, the encroachment part does not change.
17. Thus, considering the law laid down, the trial court has
erred in holding that the suit is filed in the year 2022 and the
proposed amendment is sought in the year 2024 without any
explanation as to why the amendment could not be made at the
commencement of the trial. It is further erroneously observed that
the amendment completely and fundamentally changes the nature of
the stand taken by the party concerned or it puts of a completely
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new cause. This observations by the learned civil judge to my mind is
erroneous. The amendment does not make any new case nor does it
alter the boundaries towards the side of the encroachment. The
amendment would explain the suit property in a better way and the
basic boundaries would remain the same.
18. Prima facie, there is no prejudice caused to the
defendant. As such, the amendment application ought to have been
allowed. The amendment application is accordingly allowed. The
petitioner is permitted to carry out the amendment on production of
this order within a period of two (02) weeks. The defendant /
respondent would be permitted to defend the amendment.
19. The writ petition accordingly stands allowed. Rule is
made absolute in above terms.
[ARUN R. PEDNEKER, J.]
marathe
