Bombay High Court
Ibhrahim Shamshuddin Shaikh vs Moyonodin Papamiya Jahagirdar And Ors on 16 April, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:17269
-WP-12533-2023.DOC
Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12533 OF 2023
Ibhrahim Shamshuddin Shaikh
Age: 59 Occ: Business,
R/o. Bunglow No. 11, Wadala Road,
Rehnuma Nagar, Nashik - 422 006 ..Petitioner
Versus
1. Moyonodin Papamiya Jahagirdar
Age- 57 Occ - Business
2. Mationdine Papamiya Jahagirdar
Age- 52 Occ-Business
R/o. House No. 2454, Badi Darga
Old Nashik, Nashik.
3. Shakil Shamioddin Pirjade
Since deceased through Legal Heirs
3a. Shagufta Shakeel Peerjade,
3b. Ramiz Shakeel Peerjade,
3c. Lucka Shakeel Peerjade
3d. Shehjaad Shakeel Peerjade
All residing at Badi Dargha,
ARUN
RAMCHANDRA
SANKPAL
Old Nashik, Nashik.
Digitally signed by
ARUN
RAMCHANDRA
SANKPAL
4. Akil Shamioddin Pirjade
Date: 2025.04.16
19:50:55 +0530
Age Adult Occ- Service
5. Adil Shamioddin Pirjade
Age Adult, Occ- Business
R/o. House No. 2454, Badi Darga
Old Nashik, Nashik.
6. Vikram Digvijay Kadadia
Age-Adult, Occ-Service & Agriculture
R/o Babu Bhai Villa, Kulkarni Colony,
1/17
::: Uploaded on - 16/04/2025 ::: Downloaded on - 16/04/2025 22:29:38 :::
-WP-12533-2023.DOC
Sharanpur Road Nashik.
7. Viraj Esate Pvt Ltd Through
Mr. Vilas Rasiklal Shah,
Age-Adult, Occ - Business & Agriculture
R/o - 4th Floor Abhyankar Towers,
MG Road, Nashik.
8. Vinod Dilipkumar Majetiya,
Age-61, Occ-Business & Agriculture
R/o- 480 Gole Colony, Nashik.
9. Pramod Atmaram Sakhre
Age 52 Occ - Business & Agriculture
R/o Office Number 6, 3rd Floor,
Yashomandir Avenue, Near
Tushar Hotel, College Road, ...Respondents
Nashik.
Mr. S.S. Kulkarni, with Gaurav Ugale, for the Petitioner.
Mr. V.R. Kasle, for Respondent Nos. 1, 2, 4 and 5.
Mr. R.D. Soni, i/b Ram & Co, for Respondent No.7.
Mr. Vikram Sathaye, with Hrishikesh S. Shinde, for Respondent Nos. 8
& 9.
CORAM: N. J. JAMADAR, J.
JUDGMENT RESERVED ON : 27TH JANUARY 2025
JUDGMENT PRONOUNCED ON : 16TH APRIL 2025
JUDGMENT:
1. Rule. Rule made returnable forthwith and with the consent of the
learned counsel for the parties, heard finally.
2. This Petition under Article 227 of the Constitution of India assails
an order dated 30th September 2023 passed by the learned Civil Judge,
Senior Division, Nashik, whereby an Application (Exhibit "193")
-WP-12533-2023.DOC
preferred by the Petitioner-Plaintiff for amendment in the Plaint came to
be rejected.
3. The background facts leading to this Petition can be stated in
brief as under:
3.1 For the sake of convenience and clarity the parties are hereinafter
referred to in the capacity in which they are arrayed before the Trial
Court.
3.2 The Plaintiff claims to be the legatee of the Will dated 13 th
August 2007 executed by Jaibunissa Yasin Inamdar-Jahagirdar, where
under the said Jaibunissa had bequeathed her right, title and interest in
the lands bearing Survey Nos. 197/1-E, 197/1-B and CTS No. 3290
situated at Nashik ("the suit properties").
3.3 Gulam Hussain Inamdar was the original holder of all the suit
properties. Gulam Hussain had two wives. Jaibunissa claimed to be the
daughter of late Gulam Hussain born to his second wife, Allawali
Begum. Apart from Jaibunissa, Ghulam Hussain had two daughters from
Allawali Begum, namely, Faizunissa and Shamsunissa. Shamsunissa
passed away on 4th February 1999. Faizunissa passed away on 7th
November 2005.
3.4 The Defendant Nos. 1 and 2 are the heirs of Gulam Hussain born
to him from his first wife.
-WP-12533-2023.DOC
3.5 Late Jaibunissa (the deceased Plaintiff) instituted a Suit, being
RCS No. 344 of 2007, asserting, inter alia, that late Faizunissa had
instituted the Suit bearing RCS No. 199 of 2005, falsely seeking a
declaration that the deceased Plaintiff was not heard of for seven years
by the persons who would have heard of her and thus it be declared that
the late Faizunissa has become the owner of the suit properties.
Defendant Nos. 1 and 2 herein were impleaded as party-Defendants to
the said Suit.
3.6 During the pendency of said Suit Faizunissa passed away and
Defendants Nos. 3 to 5 herein were brought on record as the legal
representatives of late Faizunissa. Eventually, the legal representatives of
Faizunissa (Defendant Nos. 3 to 5) and Defendant Nos. 1 and 2 entered
into a fraudulent Consent Terms in the said Suit and a Consent Decree
was obtained, though the deceased Plaintiff; Jaibunissa, was very much
alive.
3.7 The deceased Plaintiff thus sought a declaration that the decree
passed in RCS No. 199 of 2005 was null and void; the deceased Plaintiff
was the absolute owner of the suit properties and the transfers, if any,
effected pursuant to the aforesaid decree be also declared as null and
void.
3.8 The deceased Plaintiff passed away on 9 th February 2020. The
Petitioner took out an Application for substitution in the capacity of the
-WP-12533-2023.DOC
legatee of the Will of the deceased Plaintiff. By an order dated 22 nd July
2021, the Petitioner came to be impleaded as the Plaintiff.
3.9 The trial had already commenced during the lifetime of the
deceased Plaintiff.
3.10 Defendant Nos. 6 and 7 preferred an Application to implead them
as party-Defendants to the Suit (Exhibit "166"), asserting that the
Defendant Nos. 6 and 7 had purchased part of Survey Nos. 197/1/B and
197/1/E and acquired development rights in respect of part of Survey
No. 197/1/E from the late Faizunissa and other co-Defendants.
3.11 By an order dated 25th October 2021, the learned Civil Judge was
persuaded to allow the Application and directed the Plaintiff to implead
Defendant Nos. 6 and 7.
3.12 Another Application (Exhibit "181") was preferred by Defendant
Nos. 8 and 9 on an identical premise. By an order dated 19 th September
2022, the learned Civil Judge directed the impleadment of Defendant
Nos. 8 and 9 as well.
3.13 Thereafter, the Plaintiff preferred an Application to amend the
Plaint asserting, inter alia, as during the pendency of the Suit, Defendant
Nos. 6 to 9 have been impleaded as party-Defendants, it was necessary
to make averments in the Suit as regards the instruments which have
been purportedly executed by the co-Defendants and others in favour of
Defendant Nos. 6 to 9 and seek reliefs.
-WP-12533-2023.DOC
3.14 The Application was resisted by the Defendants.
3.15 By the impugned order, the learned Civil Judge was persuaded to
reject the Application observing that, the averments in the Plaint
indicate that the Plaintiff was aware about the transfer of the portions of
the suit properties by late Faizunissa and Shamsunissa by testamentary
disposition and execution of the instruments in favour of third parties
and yet no relief of declaration qua those transfers was sought in the
Plaint. Secondly, the Sale Deeds in favour of Defendant Nos. 6 to 9 were
registered. Therefore, the Plaintiff had notice of the said instruments;
which were also reflected in the mutation entries certified on the
strength of the said instruments. Since the trial had commenced, it was
incumbent upon the Plaintiff to satisfy the requirement of due diligence.
As the Plaintiff failed to satisfy the test of due diligence, the Application
deserved to be rejected.
4. Mr Kulkarni, the learned Counsel for the Petitioner, submitted
that the learned Civil Judge has taken a hyper-technical view of the
matter. Defendant Nos. 6 to 9 came to be added as they had sought their
impleadment on the basis of the transfer of the interest by the co-
Defendants and others. Upon perusal of the said Applications and the
Written Statements filed by Defendant Nos. 6 to 9, the true picture
emerged. Since the impleadment of Defendant Nos. 6 to 9 occurred after
the commencement of the trial, the learned Civil Judge could not have
-WP-12533-2023.DOC
rejected the Application for amendment in the Plaint which was
essentially consequential to the impleadment of Defendant Nos. 6 to 9.
5. To buttress this submission, Mr. Kulkarni placed reliance on the
judgment of the Supreme Court in the cases of Nitaben Dinesh Patel Vs
Dinesh Dahyabhai Patel1 and in the case of Ragu Thilak D. John Vs S
Rayappan & Ors.2
6. Mr. Soni, the learned Counsel for the Respondent No. 7, led the
resistance on behalf of contesting Respondents and countered the
submissions made on behalf of the Petitioner. Taking the Court through
the averments in the Plaint and the text of the draft amendment, Mr.
Soni would urge that the proposed amendment is not necessary for the
determination of the real question in controversy between the parties.
The averments in the original Plaint substantially cover the averments
sought to be incorporated by way of amendment. To fill in the lacuna in
the Plaintiff's case, the proposed amendment was sought and that too
after two years of the impleadment of the Defendants.
7. Mr. Soni strenuously submitted that, in the facts of the case, the
learned Civil Judge was fully justified in rejecting the Application for
amendment as there was not a whisper about the due diligence in the
Application seeking amendment in the Plaint. Since the trial had
commenced, the interdict contained in the proviso to Order VI Rule 17
1 (2021) 20 SCC 210.
2 (2001)2 SCC 472.
-WP-12533-2023.DOC
came into play. In the absence of material to show that the Plaintiff
could not have introduced the matter by way of amendment before the
commencement of the trial, the Court cannot permit amendment in the
Plaint.
8. Mr Soni further submitted that the proposed amendment seeking
declaration qua the instruments which have been executed in favour of
Defendant Nos.6 to 9 is ex-facie barred by law of limitation. Thus, under
no circumstances, the Plaintiff can be permitted to amend the Plaint so
as to incorporate the relief which is ex-facie barred by law of limitation.
9. In order to lend support to the aforesaid submissions, Mr Soni
placed reliance on judgment of the Supreme Court in the case of Pandit
Malhari Mahale Vs Monika Pandit Mahale & Ors, 3 and the judgments of
this Court in the cases of Mahadevi Annasaheb Jagtap Vs Shilabai Popat
Lambe & Ors,4 Rajiv Navinchandra Shah Vs Chandrakant Kantilal Shah
& Ors,5 Anil Ramsing Bilawar & Ors Vs Anita Gopal Kadam, 6 Noor
Kabirdin Meghani & Ors Vs Sanjeev Menuel D'Souza 7 and Ravi Ashish
Builders Ltd Vs Shardadevi Vikramjeet Yadav & Anr 8, wherein this Court
declined to permit the party to amend the Pleading on account of non-
3 2021 (3) All MR 702
4 2021 (4) All MR 687.
5 Writ Petition No. 15335 of 2023 decided on 11 th December 2023.
6 2022(2) Mh.L.J. 345.
7 2021 (5) Mh.L.J. 594
8 2024 (2) Bom C.R. 390.
-WP-12533-2023.DOC
satisfaction of the mandate contained in the proviso to Order VI Rule 17
of the Code.
10. I have given careful consideration to the material on record and
the submissions canvassed across the bar. Undoubtedly, the trial had
commenced. The pivotal question that thus comes to the fore is,
whether, in the facts of the case, the learned Civil Judge was justified in
rejecting the Application for amendment in the Plaint on the premise
that the Plaintiff failed to satisfy the test of due diligence?
11. The legal position as regards the power of the Court to permit the
amendment in the pleading is well-settled. All amendments which are
necessary for the determination of real question in controversy between
the parties are required to be allowed, keeping in view the limitations
which govern exercise of the power to amend the pleadings. The
potentiality of the prejudice to the opponent by permitting a party to
amend the pleadings; the likelihood of alteration of the nature and
character of the Suit; whether the proposed amendment takes away a
right which has accrued in favour of the opponent and, by way of
proposed amendment, whether the Plaintiff intends to incorporate a
relief which is ex-facie barred by limitation, are few of the prominent
considerations which weigh with the Court, in addition to the
overarching principle of the necessity of the amendment for the
determination of real question in controversy.
-WP-12533-2023.DOC
12. The proviso to Order VI Rule 17, which came to be introduced by
2000 amendment to the Code, however, restricts the power of the Court
to permit the amendment in the pleading, by introducing an element of
due diligence. In the case of Vidyabai And Ors Vs Padmalatha & Anr 9,
the Supreme Court expounded the import of the proviso on the power
of the Court to permit the amendment in the following terms.
"19. It is the primal duty of the Court to decide as
to whether such an amendment is necessary to decide
the real dispute between the parties. Only if such a
condition is fulfilled, the amendment is to be allowed.
However, proviso appended to Order 6 Rule 17 of the
Code restricts the power of the Court. It puts an embargo
on exercise of its jurisdiction. The Court's jurisdiction, in
a case of this nature is limited. Thus, unless the
jurisdictional fact, as envisaged therein, is found to be
existing, the Court will have no jurisdiction at all to
allow the amendment of the plaint."
13. It may not be necessary to refer to and multiply the authorities as
the underlying principle is well-recognized: the satisfaction of the Court
that the party seeking amendment could not have raised the matter
before the commencement of the trial, despite due diligence, is a
jurisdictional fact which is required to be satisfied. If the Court finds that
such jurisdictional fact is not established to the satisfaction of the Court,
9 (2009) 2 SCC 409.
-WP-12533-2023.DOC
the Court cannot permit the amendment in the pleadings, post the
commencement of the trial.
14. On the aforesaid anvil, reverting to the facts of the case, in my
view, the trial Court ought to have kept in view of the entire construct of
the matter. The deceased Plaintiff instituted the Suit with the assertion
that a fraud was played on the Court in as much as a compromise decree
was obtained by claiming that the deceased Plaintiff was not heard of
for over seven years, though the deceased Plaintiff' was very much alive.
This backdrop of the Suit, wherein a fraud is alleged, would necessarily
bear upon the prayer for amendment in the Plaint.
15. Secondly, the impleadment of Defendant Nos. 6 to 9, admittedly
after the commencement of the trial, could not have been brushed aside
as inconsequential. The trial Court permitted the impleadment of
Defendant Nos. 6 to 9-transferees of the co-Defendants and others as the
trial Court was of the view that the decree which may eventually be
passed in the Suit may affect the rights of Defendant Nos. 6 to 9.
16. Indubitably, Defendant Nos. 6 to 9 filed Written Statements
contending that the transfers in their favour were legal and valid and
they were bonafide purchasers for value without notice of the claim of
the deceased Plaintiff. Thus the prayer of setting aside the Consent
Decree and a further declaration that deceased Plaintiff was the absolute
-WP-12533-2023.DOC
owner of the suit properties, necessarily implied that there was a lis
between the deceased Plaintiff and Defendant Nos. 6 to 9 as well.
17. Thirdly, the fact that in the Plaint the Plaintiff had referred to the
transfers by way of testamentary dispositions by late Faizunissa and late
Shamsunissa and transfer inter-vivos and assailed the validity of those
testamentary dispositions and transfers also, albeit, on a tangent, was
also a material consideration.
18. The thrust of the submission of Mr. Soni was that these averments
would imply that the deceased Plaintiff had knowledge about those
dispositions and transfers and, therefore, the omission to seek reliefs
rendered the subsequent endeavour to seek declaration regarding the
said instruments in favour of Defendant Nos. 6 to 9 clearly barred by
law of limitation.
19. I am afraid to accede to the submission of Mr. Soni. A meaningful
reading of the Plaint and the proposed amendment would indicate that
the nature and character of the Suit remains intact. The substance of the
claim of the Plaintiff is that by falsely claiming that the deceased
Plaintiff was not heard of for over seven years, though she was very
much alive, a Consent Decree was obtained and on the strength of such
declaration, transfers were effected. Thus the core case of the Plaintiff
remains unchanged.
-WP-12533-2023.DOC
20. On the aspect of bar of limitation also, it is necessary to note that
the proposed amendment can only be said to be an exercise in
elaboration and amplification of original case of the Plaintiff. The
necessary particulars regarding the instruments executed in favour of
Defendant Nos. 6 to 9 are sought to be incorporated by way of proposed
amendment purportedly based on the disclosures made by Defendant
Nos. 6 to 9.
21. It is true, where the relief sought to be introduced by way of
amendment is ex-facie barred by law of limitation, as a rule, the Court
ought to decline permission to amend the Plaint. However, that is a
factor be taken into account along with all the attendant circumstances
of the case. The submission on behalf of the Defendants that the
deceased Plaintiff had knowledge about the said transfers and the
instruments, and, therefore, the relief now sought to be claimed is
barred by law of limitation, is a matter which could thus be adjudicated
at the trial.
22. A useful reference in this context can be made to the decision of
the Supreme Court in the case of Life Insurance Corporation of India Vs
Sanjeev Builders Private Limited10 wherein, after adverting to the
decision of Ragu Thilak D. John(Supra), on which reliance was placed
by Mr. Kulkarni, the following propositions were enunciated. They read
as under.
10 (2022) 16 SCC 1.
-WP-12533-2023.DOC
"30. From the above, therefore, one of the cardinal
principles of law in allowing or rejecting an application for
amendment of the pleading is that the courts generally, as a
rule, decline to allow amendments, if a fresh suit on the
amended claim would be barred by limitation on the date
of filing of the application. But that would be a factor to be
taken into account in the exercise of the discretion as to
whether the amendment should be ordered, and does not
affect the power of the court to order it, if that is required
in the interest of justice.
31. In Ragu Thilak D John Vs S Rayappan & Ors, (2001) 2
SCC 472, this Court also observed that where the
amendment was barred by time or not, was a disputed
question of fact and, therefore, that prayer for amendment
could not be rejected and in that circumstance the issue of
limitation can be made an issue in the suit itself like the
one made by the High Court in the case on hand."
(emphasis supplied)
23. The conspectus of the aforesaid consideration is that, in the
peculiar facts of the case, the learned Civil Judge could not have rejected
the Application on the premise that the Plaintiff failed to demonstrate
that despite due diligence, he could not have sought the amendment
before the commencement of the trial. Nonetheless, though the Plaintiff
deserves leave to amend the Plaint, yet, in my view, the doctrine of
severance is required to be resorted to. Certain portions of the text of the
-WP-12533-2023.DOC
draft amendment in paragraph 11a and 11b are required to be eschewed
from introduction by way of amendment as they refer to the events and
facts which were in the knowledge of the deceased Plaintiff at the time
of the institution of the Suit.
24. Thus, the Application for amendment deserves to be partly
allowed, except the portions in proposed amendment 11 v and 11c
which are marked "X1" and "X2". Hence the following order:
: O R D E R:
(i) The Petition stands partly allowed.
(ii) The impugned order dated 30th
September 2023 rejecting the Application for
amendment stands quashed and set aside.
(iii) The Application for amendment
(Exhibit "193") stands partly allowed.
(iv) The Plaintiff is permitted to amend
the Plaint in accordance with the texts of draft
amendment except the contents of proposed
paragraph 11v commencing from (nkok feGdrh
laca/kkus izfroknh uacj 6 ;kaps YkkHkkr QSTtqfulk cki
egaen ;klhu lkgsc xqyke gqlsu bukenkj o
izfroknh uacj 1 rs 5 ;kauh fnukad 31@10@2005
jksth fygwu fnysys ---------------------------- R;kpizek.ks
-WP-12533-2023.DOC
R;kaps e`R;q ckcr dksVkZus jsX;qyj eqdknek uafj
199@2005 e/;s dks.krkgh gqdwe dsysyk ukgh]½
marked X1 and para 11c commencing from (nkok
feGdrh laca/kkus izfroknh uacj 7 ;kaps YkkHkkr
QSTtqfulk cki egaen ;klhu lkgsc xqyke gqlsu
bukenkj o izfroknh uacj 1 rs 5 ;kauh fnukad
31@10@2005 jksth fygwu fnysys ----------------------------
R;kpizek.ks R;kaps e`R;q ckcr dksVkZus jsX;qyj eqdknek
uafj 199@2005 e/;s dks.krkgh gqdwe dsysyk ukgh]½
marked X2.
(v) Necessary amendment in accordance
with the aforesaid clause be carried out within a
period of three weeks from the date of uploading
of this order and copy of the amended Plaint be
served on the Defendants.
(vi) The Defendants are at liberty to file
an Additional Written Statement within a period
of one month of being served with the amended
copy of the Plaint.
(vii) The issue of bar of limitation as
regards the amended reliefs is kept open for
adjudication at the trial.
-WP-12533-2023.DOC
(viii) Rule made absolute to the aforesaid extent.
(ix) The learned Civil Judge, Senior Division,
Nashik, seized with RCS No. 344 of 2007 is
requested to hear and decide the suit as
expeditiously as possible.
(x) No costs.
[N. J. JAMADAR, J.]
