Bombay High Court
Ramkrishna Govind Rane vs Shivajirao Jagannath Bhosale Since ... on 1 April, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:15585
3-WP10675-2023.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10675 OF 2023
Ramkrishna Govind Rane ...Petitioner
Versus
Shivajirao Jagannath Bhosale (since
deceased) through LRs.
1A. Kamal Shivajirao Bhosale
SANTOSH 1B. Sunil Shivajirao Bhosale
SUBHASH
KULKARNI 1C. Anil Shivajirao Bhosale
Digitally signed by
SANTOSH SUBHASH
KULKARNI
1D. Nitin Shivajirao Bhosale
Date: 2025.04.04
14:51:59 +0530 1E. Yogita Satyajeet Patil ...Respondents
Mr. Abhay Anil Anturkar, a/w Tanaji Mahatugade and
Harshvardhan Suryawanshi, for the Petitioner.
Mr. Dilip Bodake, for the Respondents.
CORAM: N. J. JAMADAR, J.
DATED: 1st APRIL, 2025
ORAL JUDGMENT:-
1. Rule. Rule made returnable forthwith and, with the
consent of the learned Counsel for the parties, heard finally.
2. The challenge in this petition is to an order dated 7 th
August, 2023 passed by the learned Civil Judge, Pune,
whereby an application (Exhibit-314) preferred by the plaintiff
for amendment in the plaint in Special Civil Suit No.1896 of
2017 came to be rejected.
3. The background facts leading to this petition can be
summarised as under:
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3.1 Late Shalini Rane, the wife of the petitioner, had
instituted a suit for specific performance of the contract to
sale the suit property contained in the agreement dated 23 rd
February, 1983. In the said suit, it was the assertion of the
late plaintiff that the then defendant No.1 (hereinafter
referred to as deceased defendant) had agreed to sell the suit
property for a consideration of Rs.3,20,000/- and towards
part consideration, a sum of Rs.2,00,000/- was paid to the
deceased defendant by a cheque drawn on Rupee Co-
operative Bank, Shivaji Nagar, Pune. The deceased defendant
was to obtain the permission of the competent authority
under the Urban Land (Ceiling and Regulation) Act, 1976,
and, thereafter, execute the sale deed.
3.2 Late plaintiff had further asserted that the deceased
defendant had agreed to execute the sale deed in favour of the
plaintiff or in the name of the plaintiff and defendant No.2,
her husband. Though defendant No.2 was shown as the
prospective purchaser, consideration had been paid by the
plaintiff only and the balance consideration was also to be
paid by the plaintiff alone. Therefore, defendant No.2 was
impleaded as a formal party defendant to the suit.
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3.3 During the pendency of the suit, defendant No.2 - the
petitioner herein, filed an application to transpose him as
plaintiff. By an order dated 3 rd September, 1997, the
petitioner came to be transposed as plaintiff No.2.
3.4 It seems that there was some sort of composition
between the late plaintiff and the deceased defendant. An
application for withdrawal of the suit was filed by the late
plaintiff. The petitioner opposed the said application. By an
order dated 9th July, 2002, the said application for withdrawal
of the suit came to be rejected.
3.5 Shalini Rane passed away on 18th February, 2014. The
petitioner came to be impleaded as plaintiff No.1A in the
capacity of the legal representative of late plaintiff, alongwith
plaintiff No.1B, who is the son of plaintiff No.2 and late
plaintiff No.1. Trial commenced. The parties led evidence.
3.6 At the stage of the final arguments, the plaintiffs filed
an application seeking amendment in the plaint so as to
delete paragraph 21, and the following averment in paragraph
4 of the plaint, "though the plaintiff is only to pay the
consideration of the said plot to the defendant No.1".
3.7 The application was resisted by the defendants.
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3.8 By the impugned order, the learned Civil Judge was
persuaded to reject the application primarily on the ground
that, by the proposed amendment, the plaintiffs intended to
withdraw the admission which created a vested right in the
defendants. Consequently, the proposed amendment was
prejudicial to the defendants.
4. I have heard Mr. Anturkar, the learned Counsel for the
petitioner, and Mr. Bodake, the learned Counsel for the
respondents.
5. The learned Counsel for the petitioner submitted that
though the application was preferred at the stage of final
argument of the suit, yet, the facts of the case would indicate
that no real prejudice was likely to be caused to the
defendants by permitting the plaintiffs to amend the plaint.
The learned Counsel for the petitioner took the Court
through the written statement filed by the deceased
defendant, especially the contentions in paragraphs 8 and 10
of the written statement, the tenor of which was that the real
transaction was between the deceased defendant and plaintiff
No.2.
6. The learned Counsel further submitted that in view of
the subsequent developments and the demise of late plaintiff
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No.1, the averments in paragraph 21 of the plaint wherein the
late plaintiff had made an endeavour to demonstrate that the
name of plaintiff No.2 was nominally included in the
agreement for sale and no consideration was parted with by
plaintiff No.2, are required to be deleted. It was submitted
that in order to determine the real question in controversy
between the parties, the proposed amendment is necessary.
A strong reliance was placed on the judgment of the Supreme
Court in the case of Rajesh Kumar Aggarwal and others vs.
K. K. Modi and others1
7. Mr. Bodake, the learned Counsel for the respondents -
defendants, strongly opposed the prayer for amendment. It
was submitted that the proposed amendment will cause
grave prejudice to the defendants. Plaintiff No.2 did not seek
the amendment in the plaint immediately after his
transposition as the plaintiff. The proposed amendment will
completely alter the nature and character of the suit. In fact,
according to Mr. Bodake, entire trial would be reopened as
the plaintiffs would be required to establish that the
consideration was not parted with by the late plaintiff.
Therefore, the learned Civil Judge was justified in rejecting
1 (2006) 4 Supreme Court Cases 385.
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the application for amendment at such a belated stage, urged
Mr. Bodake.
8. Mr. Anturkar, the learned Counsel for the petitioner, on
instructions, made a statement that the plaintiffs would not
lead further evidence in the event the amendment is allowed.
The proposed amendment was necessitated on account of the
incongruity in the late plaintiff's initial case and the
subsequent developments.
9. I have given anxious consideration to the rival
submissions. First and foremost, it is necessary to note that
the suit came to be instituted in the year 1996. Consequently,
the amendment introduced by inserting the proviso to Rule
17 Order VI, by the CPC Amendment Act, 2000, is not
attracted to the case at hand. Thus, the application for
amendment was required to be appreciated on the well
recognized principles which govern an application for
amendment in the pleadings.
10. Two overarching principles generally govern an
application for amendment in the pleadings. One, whether
the amendment is necessary for determining the real
question in controversy between the parties. All amendments
which are necessary to determine the real question in
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controversy between the parties, are required to be allowed.
Two, whether the proposed amendment has the potentiality
to cause irretrievable prejudice to the opponent. Few other
factors like, whether the proposed amendment completely
alters the nature and character of the suit or the relief
sought to be claimed, by way of amendment, is barred by law
of limitation, or otherwise the proposed amendment takes
away a right vested in the opponent, are also required to be
kept in view.
11. In the facts of the case at hand, from the tenor of the
plaint, it becomes evident that the late plaintiff had asserted
that the deceased defendant had agreed to sell the suit
property to the late plaintiff and her husband, the then
defendant No.2, albeit with a rider that the consideration was
paid by late plaintiff alone and the then defendant No.2 had
not contributed thereto and the balance consideration was
also to be paid by the late plaintiff.
12. It is the response of the deceased defendant to the
aforesaid case of the late plaintiff, that assumes material
significance. In the written statement, in paragraph 8, the
then defendant No.1 had categorically contended that the
then defendant No.2 was required to be transposed as the
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plaintiff. In paragraph 10 of the written statement, it was
specifically denied that late plaintiff had paid Rs.2,00,000/-
to the deceased defendant towards the consideration. On the
contrary, it was contended, the real transaction was between
the deceased defendant and the petitioner - then defendant
No.2. It was the defendant No.2, who had paid the said sum
of Rs.2,00,000/- by way of an advance and made the
deceased defendant to execute the agreement for sale.
13. The substance of the defence of the deceased defendant
was that defendant No.2, being an Advocate, represented the
deceased defendant in legal matters, the professional bond
grew strong; the defendant No.2 had advanced money to the
deceased defendant and to cover the said amount of loan of
Rs.2,00,000/-, the defendant No.2 had made the deceased
defendant to execute an agreement for sale, and as the
deceased defendant reposed trust and confidence in
defendant No.2, the agreement for sale was executed. And
there was no transaction between the deceased defendant
and late plaintiff, as alleged, nor the consideration was paid
by late plaintiff.
14. In the backdrop of the aforesaid nature of the defence of
the deceased defendant, I find substance in the submission
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on behalf of the petitioner that the proposed amendment is
necessary for the determination of real question in
controversy and is also not likely to cause any prejudice to
the deceased defendant.
15. The learned Civil Judge was of the view that the
proposed amendment takes away an admission. I am afraid,
the said assessment of the learned Civil Judge is correct. The
claim of late plaintiff was controverted by the deceased
defendant. It was the specific contention of the deceased
defendant that late plaintiff had not paid the sum of
Rs.2,00,000/- to the deceased defendant towards the part
consideration for the contract for sale, as alleged, and the
said amount paid to the deceased defendant, represented an
advance given by the then defendant No.2 to the deceased
defendant.
16. The Court is also required to take conscious cognizance
of the subsequent developments in the nature of an abortive
attempt of withdrawal of the suit by late plaintiff and the
subsequent impleadment of plaintiff No.2 also as a legal
representative of late plaintiff. It is true that, upon being
impleaded as a legal representative of the late plaintiff, the
plaintiff No.2 was, in law, entitled to take the stand which is
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appropriate to his character as the legal representative of
plaintiff No.1. However, the Court cannot lose sight of the fact
that plaintiff No.2 got himself transposed in his own right.
Therefore, the limitations which generally apply to a legal
representative, who is impleaded in the place of a deceased
party, do not preclude the plaintiff No.2 from taking a stand
which is at variance with that of the late plaintiff.
Consequently, it cannot be said that plaintiff No.2 is bound
by the admissions of late plaintiff. Moreover, in view of the
stand of the deceased defendant in the written statement, it
is debatable whether the said averments in the plaint can be
construed as an admission.
17. Even otherwise it is trite law that admissions are not
conclusive and can be explained and even inconsistent pleas
can be taken in the pleadings. (Usha Balasaheb Swami vs.
Kiran Appaso Swami (AIR 2007 Supreme Court 1663).
18. In the peculiar facts of the case at hand, in order to
determine the real question in controversy between the
parties which according to the deceased defendant is, in fact,
between the deceased defendant and plaintiff No.2 only, the
proposed amendment appears essential for a just decision of
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the case. No prejudice is likely to be caused to the defendants
by the proposed amendment.
19. On the aspect of delay and protraction of trial, the
statement made on behalf of the petitioner that the plaintiffs
will not lead any further evidence can be accepted as a
statement made to the Court. Additionally, the plaintiffs can
be saddled with costs. Resultantly, the petition deserves to
be allowed.
20. Hence, the following order:
:ORDER:
(i) The petition stands allowed.
(ii) The impugned order stands quashed and set aside.
(iii) The application for amendment in the plaint (Exhibit-
314) stands allowed subject to payment of costs of
Rs.10,000/- by the plaintiff to the defendants within a
period of two weeks from the date of uploading of this
order.
(iv) Necessary amendment in the plaint be carried out
within a period two weeks of the payment of the costs
and amended copy of the plaint be served on the
defendants.
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(v) The defendants are at liberty to file an additional
written statement, within a period of 30 days of the
service of the amended copy of the plaint.
(vi) The statement made on behalf of the plaintiffs that the
plaintiffs will not lead further evidence, post
amendment, is accepted as a statement made to the
Court.
(vii) The defendants are, however, at liberty to lead further
evidence, if they chose to.
Rule made absolute in the aforesaid terms.
[N. J. JAMADAR, J.]
