Bombay High Court
Shri. Sanjay Mahadev Bakare vs Smt. Bebi Shankar Patil And Ors on 12 March, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:11946
-WP-2097-2023-J.DOC
Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2097 OF 2023
Sanjay Mahadev Bakare
Age 62 years, Occu: Agriculture
R/at C.T.S. No. 381, Korgaonkar
Compound, ..Petitioner
E Ward, Kolhapur 416 001.
Versus
1. Bebi Shankar Patil,
Age: 65 years Occu: Household
R/at: Mudshingi, Tal-Karveer,
Dist: Kolhapur.
2. Vimal Bhra. Balasaheb Deshmukh
Age: 62 years Occu: Household
R/at: Mudshingi, Tal-Karveer,
Dist: Kolhapur.
3. Deepak Rangrao Patil
Age: 64 years Occu: Business
R/at: 1992, E Eard, Rajarampuri,
8th Lane, Kolhapur.
4. Jyoti Deepak Patil,
Age: 50 years Occu: Agriculture
R/at: 1992, E Eard, Rajarampuri,
8th Lane, Kolhapur.
SANTOSH
SUBHASH
KULKARNI 5. Vilas Rangrao Patil
Digitally signed
Age: 67 years Occu: Agriculture,
by SANTOSH
SUBHASH
KULKARNI
R/at: 1992, E Eard, Rajarampuri,
Date: 2025.03.13
21:10:13 +0530
8th Lane, Kolhapur.
6. Yashoda Vilas Patil,
Age: 56 years Occu: Agriculture
R/at: 1992, E Eard, Rajarampuri, ...Respondents
8th Lane, Kolhapur.
1/22
::: Uploaded on - 13/03/2025 ::: Downloaded on - 13/03/2025 21:57:14 :::
-WP-2097-2023-J.DOC
Mr. Drupad Sopan Patil, with Rugwed Kinkar and
Namitkumar Pansare, for the Petitioner.
Mr. Shrikrishna Ganbavale, with Shantanu Patil, i/b Kush
Lahankar, for Respondent Nos. 1 and 2.
Mr. Prasad Dhakephalkar, Senior Advocate (through VC), i/b
Shubham Kanade, for Respondent Nos. 3 to 6.
CORAM: N. J. JAMADAR, J.
DATED : 12th MARCH 2025
JUDGMENT:
1. Rule. Rule made returnable forthwith and with the
consent of the Counsel for the parties, heard finally.
2. The petitioner - plaintiff takes exception to an Order dated
1st December 2022 passed by the learned Civil Judge, Kolhapur
on an Application (Exhibit-157) in Special Civil Suit No. 319 of
2010, whereby the application preferred by the petitioner to
implead a subsequent transferee as a party-defendant to the
suit and also carry out necessary and consequential
amendment in the Plaint came to be rejected.
3. Shorn of superfluities the background facts can be stated
as under:
3.1 For the sake of convenience and clarity, the parties are
hereinafter referred to in the capacity they are arrayed before
the Trial Court.
-WP-2097-2023-J.DOC
3.2 Under an Agreement for Sale dated 30 th April 2007,
defendant nos. 1 and 2 agreed to sale the suit property for a
consideration of Rs. 75 lakhs. Under the said Agreement, the
defendant nos. 1 and 2 accepted a sum of Rs. 5 lakhs. Further
amounts were received towards part consideration. Under the
terms of the Agreement, the Sale Deed was to be executed after
disposal of First Appeal No. 96 of 2002. The said appeal was
disposed by an Order dated 27th November 2009 pursuant to the
Consent Terms filed by the parties thereto.
3.3 The plaintiff asserts, the said Consent Terms were
obtained by playing fraud upon the Court. During the currency
of the Agreement for Sale in favour of the plaintiff, defendant
nos. 1 and 2 executed a registered Sale Deed of the suit property
in favour of defendant nos. 3 to 6 on 3 rd December 2009. Thus
the plaintiff was constrained to institute the suit for specific
performance of the contract against the original vendors as well
as the transferees.
3.4 Post completion of pleadings, issues were settled and the
plaintiff led his evidence. When the matter was posted for cross-
examination of the defendants' witness, the plaintiff preferred
instant application (Exhibit "157") seeking the impleadment of
Dinkar Shinde as a party-defendant to the suit and also permit
-WP-2097-2023-J.DOC
the plaintiff to carry out amendment in the Plaint, purportedly
under the provisions of Order I Rule 10(2) and Order VI Rule 17
read with Section 151 of Code of Civil Procedure 1908 ("the
Code").
3.5 The substance of the application of the plaintiff was that
defendants nos. 3 to 6, the transferees from the vendors-
defendant nos. 1 and 2, have pleaded in their Written Statement
that the defendant nos. 3 to 6 have, in turn, executed a
registered Sale Deed on 5th July 2010 in favour of Dinkar Shinde
and thereby sold 26 gunthas land out of the suit property for a
consideration of Rs. 4,25,000/- It was, therefore, necessary to
implead Dinkar Shinde as a party-defendant to the Suit.
3.6 To substantiate the claim that the said Dinkar Shinde was
not a bona fide purchaser for value without notice, by way of
amendment, averments were sought to be incorporated in the
Plaint to the effect that Dinkar was fully aware of the
transaction between the plaintiff and defendant nos. 1 and 2
and the said Sale Deed in favour of Dinkar Shinde came to be
executed without consideration and by way of illegal
gratification for the assistance rendered by Dinkar Shinde in
getting the Sale Deed of the suit land executed in favour of
defendant nos. 3 to 6 fraudulently. It was, therefore, not
-WP-2097-2023-J.DOC
necessary to seek a declaration that the said Sale Deed dated 5 th
July 2010 was null and void. The plaintiff thus simply sought to
implead Dinkar Shinde as defendant no.7 and seek the relief of
possession and injunction qua the proposed defendant no.7
also.
3.6 The application was resisted by the defendant.
3.7 By the impugned order, the learned Civil Judge, Senior
Division, Kolhapur, was persuaded to reject the application
observing inter alia that the said Sale Deed dated 5th July 2010
in favour of Dinkar Shinde was executed before the institution of
the Suit; the principle of lis pendens did not came into play; the
defendant nos. 3 to 6 had specifically contended that they had
sold the 26 gunthas land in favour of Dinkar Shinde on 5 th July
2010; the plaintiff was also cross-examined on the said aspect
and conceded that he had known the said fact and, yet, the
plaintiff did not seek the impleadment of Dinkar Shinde within
the stipulated period of limitation. The relief against Dinkar
Shinde was clearly barred by law of limitation. Moreover, the
plaintiff failed to satisfy the threshold requirement of permitting
the amendment post the commencement of the trial.
-WP-2097-2023-J.DOC
4. Being aggrieved, the plaintiff has invoked the writ
jurisdiction.
5. Mr. Drupad Patil, the learned Counsel for the petitioner,
would urge that the learned Civil Judge approached the matter
from an incorrect perspective. The primary prayer in the
application was the impleadment of Dinkar Shinde, the
subsequent transferee of defendant Nos.3 to 6. The prayer for
amendment in the plaint was essentially consequential and
ancillary. The learned Civil Judge could not have imported the
principles which govern the amendment of the plaint post
commencement of trial. In the process, according to Mr. Patil,
the learned Civil Judge misdirected himself in delving into the
merits of the case sought to be pleaded by way of amendment.
The learned Civil Judge ought to have kept in view the
principles which govern the addition of a party to a Suit for
specific performance. Since a subsequent transferee of the
vendor or the person who claims through the vendor, is
necessary party to have a complete and effectual decree, the
Trial Court could not have rejected the application for
impleadment, urged Mr. Patil.
6. To buttress these submissions, Mr. Patil placed reliance on
the Division Bench judgments of this Court in the cases of Nitin
-WP-2097-2023-J.DOC
Gandhi And Anr Vs Dinyar Pheroz Dubhash,1 Shree Kamal
Constructions & Ors Vs Kamlakar Jiwan Patil & Ors 2
and Shri Swastik Developers And Ors Vs Saket Kumar Jain.3
7. Mr. Patil, however, fairly conceded that there is an element
of delay in seeking the impleadment of Dinkar Shinde as a party
- defendant to the Suit. However, delay by itself, according to
Mr. Patil, cannot be a ground to reject the application for
impleadment when the party sought to be impleaded is
unquestionably a necessary party. The Court could have
imposed appropriate conditions and costs, submitted Mr. Patil.
8. In opposition to this, Mr. Prasad Dhakephalkar, the
learned Senior Advocate for respondent nos.3 to 6 vehemently
opposed the prayers of impleadment and amendment in the
plaint.
9. Mr. Dhakephalkar would urge that the petitioner has, by
resorting to clever drafting of the draft text of the proposed
amendment in the plaint, has sought to overcome the interdict
contained in the proviso to Order VI Rule 17 of the Code.
Incontrovertibly, the suit is at an advanced stage. As the
plaintiff cannot now seek an amendment in the plaint without
1 2015(2) MhLJ 850.
2 2013 SCC OnLine Bom 2000.
3 2014 (2) MhLJ 968.
-WP-2097-2023-J.DOC
showing due diligence, amendment is sought to be made in the
plaint in an indirect manner disguised as an application for
impleadment of a party. The predominant purpose is not the
impleadment of Dinkar Shinde but to incorporate substantial
amendment in the Plaint.
10. Mr. Dhakephalkar further submitted that the defendant
Nos.3 to 6 had disclosed in the Written Statement, filed on 7 th
October 2010 itself, that they had conveyed 26 gunthas of land
under a Sale Deed dated 5th July, 2010 in favour of Dinkar
Shinde. The plaintiff, thus, can hardly dispute the knowledge
about the said transaction. No steps were taken by the plaintiff
to implead the said subsequent transferee. To overcome the bar
of limitation qua the said instrument dated 5 th July, 2010, the
plaintiff has asserted that it is not necessary to seek declaration
qua the said instrument. The plaintiff cannot be permitted to
defeat the statutory provisions and the bar of limitation by such
clever drafting and omission to seek the prayer for declaration.
As the relief qua the said instrument dated 5 th July, 2010 is ex
facie barred by law of limitation, the amendment cannot be
permitted.
11. To bolster up the aforesaid submissions, Mr.
Dhakephalkar placed reliance on the decision of the Supreme
-WP-2097-2023-J.DOC
Court in the cases of Hardesh Ores (P) Ltd Vs Hede And
Company4 and Life Insurance Corporation of India Vs Sanjeev
Builders Private Limited & Anr.5
12. Mr. Shrikrishna Ganbavale, the learned Counsel for
respondent Nos.1 and 2, supplemented the submissions of Mr.
Dhakephalkar.
13. I have given careful consideration to the rival submissions
canvassed across the bar. With the assistance of the learned
Counsel for the parties, I have also perused the original
pleadings, application for amendment in the Plaint, the reply
thereto and the material on record.
14. To start with few uncontroverted facts. Defendant nos. 1
and 2 executed an Agreement for Sale in favour of the plaintiff
on 30th April, 2007. The parties had agreed that the Sale Deed
would be executed within one month of the disposal of the First
Appeal, in respect of the suit property, then pending before this
Court. Indisputably after the disposal of the said First Appeal
pursuant to the Consent Terms dated 27th November, 2009, the
defendant Nos.1 and 2 executed a conveyance of the suit
property in favour of defendant Nos.3 to 6. The fact that
4 (2007) 5 SCC 614.
5 2022 SCC OnLine SC 1128.
-WP-2097-2023-J.DOC
defendant Nos.3 to 6 had, in turn, executed a registered Sale
Deed of 26 gunthas land out of the suit property in favour of
Dinkar Shinde on 5th July, 2010, was specifically pleaded in the
Written Statement of the defendant Nos.3 to 6, filed on 7 th
October, 2010.
15. In the backdrop of the aforesaid facts, the issue is required
to be appreciated from two perspectives; namely, the prayer for
impleadment of a party governed by the provisions of Order I
Rule 10(2) of the Code and the prayer for amendment in the
plaint governed by Order VI Rule 17 of the Code, being alive to
the fact that, in practical application, these two aspects may not
be evaluated in watertight compartments. In a case of the
present nature, it is quite possible that these two prayers may
be so inextricably intermingled that an independent
consideration on each of the aspects without influencing the
outcome of the other may not be possible.
16. First, the aspect of impleadment of Dinkar Shinde, the
subsequent transferee, as a party defendant to the suit. In the
matter of addition or deletion of a party, it is well neigh settled
that, it is not a matter of initial jurisdiction but that of judicial
discretion to be exercised keeping in view all the relevant
considerations. The factors that the plaintiff is a dominus litis
-WP-2097-2023-J.DOC
and in a suit for specific performance, the impleadment of a
subsequent transferee is, generally, considered necessary,
especially, when the plaintiff seeks to implead such transferee,
are required to be kept in view. In view of the provisions
contained in Section 19 of the Specific Relief Act, 1963, specific
performance of a contract may be enforced against any other
person claiming under a party to the contract, by a title arising
subsequently to the contract, except a transferee for value, who
has paid his money in good faith and without notice of the
original contract. It is equally well settled that to convey
complete title to the plaintiff, in the event of grant of decree of
specific performance of the contract, the transferee is made to
join in the execution of the instrument alongwith the vendor.
From this standpoint, ordinarily, where the plaintiff moves for
impleadment of a subsequent transferee such prayer is
considered favourably in the absence of the factors which
otherwise render such impleadment unjustifiable.
17. In the case of Durga Prasad vs. Deep Chand 6 the Supreme
Court underscored the necessity of impleading the transferee of
the vendor in a suit for specific performance of the contract to
sell immovable property, in the following words:
6 AIR 1954 SC 75.
-WP-2097-2023-J.DOC
"42. In our opinion, the proper form of decree is to direct
specific performance of the contract between the vendor and the
plaintiff and direct the subsequent transferee to join in the
conveyance so as to pass on the title which resides in him to the
plaintiff. He does not join in any special covenants made between
the plaintiff and his vendor; all he does is to pass on his title to
the plaintiff. This was the course followed by the Calcutta High
Courtin Kafiladdin v. Samiraddin AIR 1931 Cal 67(C) , and
appears to be the English practice. See Fry on Specific
Performance, 6th edition, page 90, Paragraph 207 ; also Potter v.
Sanders (1846) 67 ER 1057 (D). We direct accordingly.
(emphasis supplied)
18. In the case of Dwarka Prasad Singh vs. Harikant Prasad
Singh7 after following the decision in the case of Durga Prasad
(supra) while resolving the controversy with regard to the
question whether in a suit for specific performance against a
purchaser with notice of a prior agreement of sale the vendor is
a necessary party or not, another Three-Judge Bench of the
Supreme Court enunciated the law as under:
".......... This Court has, however, held in Lala Durga Prasad &
Another v. Lala Deep Chand & Others ([1954] S.C.R, 360) that in
a suit instituted by a purchaser against the vendor and a
subsequent purchaser for specific performance of the contract of
sale the proper form of the decree is to direct specific
performance of the contract between the vendor and the plaintiff
and further direct the subsequent transferee to join in the
conveyance so as to pass on the title which resides in him to the
plaintiff. This was the course followed by the Calcutta High
Court in the above case and it appears that the English practice
was the same. Thus according to this decision, the conveyance
has to be executed by the vendor in favour of' the plaintiff who
seeks specific performance of the contract in his favour and the
subsequent transferee has to join in the conveyance only to pass
his title- which resides in him. It has been made quite clear that
he does not join in any special covenants made between the
plaintiff and his vendor. All that he does is to pass on his title to
the plaintiff. In a recent decision of this Court in R. C. Chandiok
& Another v. Chunni Lal Sabharwal & Others ([1971] 2 SCR 573)
while passing a decree for specific performance of a contract a
7 (1973) 1 SCC 179.
-WP-2097-2023-J.DOC
direction was made that the decree should be in the same form
as in Lala Durga Prasad's case. It is thus difficult to sustain the
argument that the vendor is not a necessary party when,
according to the view accepted by this Court, the conveyance
has to be executed by him although the subsequent purchaser
has also to join so as to pass on the title which resides in him to
the plaintiff."
19. In the case of Kasturi vs. Iyyamperumal8, the question
arose before the Supreme Court when a third party sought
impleadment in a suit for specific performance of the contract.
The Supreme Court drew a distinction between a subsequent
purchaser, who claimed through the vendor, and a person, who
claimed adversely to the claim of the vendor. The observations of
the Supreme Court in paragraph 7 are instructive and hence
extracted below.
"7. In our view, a bare reading of this provision namely,
second part of Order 1 Rule 10 sub-rule (2) of the CPC would
clearly show that the necessary parties in a suit for specific
performance of a contract for sale are the parties to the contract
or if they are dead their legal representatives as also a person
who had purchased the contracted property from the vendor. In
equity as well as in law, the contract constitutes rights and also
regulates the liabilities of the parties. A purchaser is a
necessary party as he would be affected if he had purchased
with notice of the contract, but a person who claims adversely
to the claim of a vendor is, however, not a necessary party.
From the above, it is now clear that two tests are to be satisfied
for determining the question who is a necessary party. Tests are
- (1) there must be a right to some relief against such party in
respect of the controversies involved in the proceedings (2) no
effective decree can be passed in the absence of such party.
(emphasis supplied)
8 (2005) 6 SCC733.
-WP-2097-2023-J.DOC
20. The aforesaid authoritative pronouncements of the
Supreme Court make it beyond cavil that the transferee of the
vendor is a necessary party to suit for specific performance of
the contract for sale of immovable property. The necessity of
impleadment of the transferee arises from the point of view of
making conveyance of title in favour of the plaintiff complete and
prefect and also from the point that such a decree may impair
the rights of the transferee and, therefore, his presence is
necessary for a complete and effectual adjudication of the
dispute.
21. Mr. Patil, the learned Counsel for the petitioner, would
urge that at the stage of impleading the transferee as a party
defendant, the merits of the claim of the transferee being a bona
fide purchaser for value need not be delved into. As a second
limb of this submission, Mr. Patil would urge that, the trial
court could not have drawn inferences against the plaintiff on
account of non-impleadment of the transferee in this case
immediately after the said fact was pleaded by defendant Nos.3
to 6, in their written statement.
22. In the case of Nitin Gandhi (supra) a Division Bench of
this Court held that at the stage of considering the Chamber
Summons seeking leave to implead/amend, the Court is really
-WP-2097-2023-J.DOC
not concerned with the veracity or otherwise of the statements
made in the proposed text of the amendment. Therefore, at that
stage, pleadings to the effect that the subsequent purchaser is
not a bona fide purchaser would suffice. There is no
requirement of producing any material or evidence for
establishing that the subsequent purchaser is not a bona fide
purchaser, at the stage when leave for impleadment/
consequential amendments is being applied for.
23. In the case of M/s Shree Kamal Construction (supra)
another Division Bench of this Court enunciated that it was
impossible to conceive as to how the impleadment of those
persons, who claimed title under the vendors of the appellants
would not be necessary. This judgment was followed in the case
of Shri Swastik Developers (supra).
24. There can be no duality of opinion on the point that at the
stage of the consideration as to whether a party is entitled to
carry out the amendment, or for that matter implead a party as
a defendant, the merits of the amendment and the case qua the
proposed defendant are not required to be delved into. In
particular, on the aspect of the transferee being a bona fide
purchaser for value without notice, in view of the text of Section
19(b) of the Specific Relief Act, generally, the onus of proof of
-WP-2097-2023-J.DOC
good faith is on the transferee who takes the plea that he is a
bona fide purchaser for value without notice of the original
contract. However, these propositions may not advance the
cause of the submission on behalf of the petitioner to the extent
desired by Mr. Patil.
25. In the facts of the case, as narrated above, the crucial
question is of the inaction on the part of the plaintiff in seeking
the impleadment of the transferee of defendant Nos.3 to 6,
despite undeniable notice in the month of October, 2010. What
accentuates the situation is, the carriage of the suit upto the
stage of recording of evidence of the defendants without seeking
the impleadment of the transferee.
26. If the plaintiff was to seek a declaration that the sale deed
executed by defendant Nos.3 to 6 in favour of the transferee
does not bind him, clearly the bar of limitation would be
attracted. The plaintiff, therefore, does not seek any declaratory
relief qua the said instrument. On the contrary, in the proposed
text of amendment, the plaintiff has made averments to the
effect that since the transferee had known about the original
contract between the plaintiff and defendant Nos.1 and 2 and
the sale deed in favour of the transferee by defendant Nos.3 to 6
was without consideration and by way of illegal gratification,
-WP-2097-2023-J.DOC
there was no need to seek declaration qua the said sale deed
dated 5th July, 2010. The aforesaid stand of the plaintiff brings
in question the permissibility of the amendment in the plaint, in
contradistinction to the impleadment simpliciter of the
transferee as a party defendant to the suit. Can the omission to
seek the declaratory relief qua the said instrument be said to be
innocuous? Can the plaintiff be permitted to now make the
averments in the plaint to assail the said sale deed, short of
seeking declaration? are the questions which are required to be
considered keeping in view the stage of the suit and the interdict
contained in the proviso to Order VI Rule 17 of the Code.
27. It is trite, if the proviso to Order VI Rule 17 is attracted,
the satisfaction of the Court that, in spite of due diligence the
party seeking the amendment could not have raised the matter
before the commencement of the trial is a jurisdictional fact.
(Vidyabai and others vs. Padmalatha and another9 )
28. In the facts of the case, the plaintiff conceivably cannot
offer any explanation, much less a justifiable one, to satisfy the
jurisdictional fact. In the application for the amendment also,
the plaintiff has not made a serious endeavour to offer such
justification. Instead, the plaintiff has laid emphasis on the
9 (2009) 2 Supreme Court Cases 409.
-WP-2097-2023-J.DOC
necessity of the amendment from the perspective of a complete
and effectual adjudication of the dispute.
29. Undoubtedly all the amendments which are necessary for
determination of the real question in the controversy between
the parties are required to be allowed. The impleadment of the
transferee and the averments regarding the instrument in favour
of the transferee are germane for the determination of the
questions in controversy. However, the fact that the relief qua
the said instrument and, by the same token, against the
transferee, is barred by law of limitation cannot be lost sight of.
30. One of the parameters on which a prayer for amendment
in the pleadings is to be tested, is bar of limitation. In the case
of Life Insurance Corporation (supra), after adverting to the
previous pronouncements, the Supreme Court enunciated that
one of the cardinal principles of law in allowing and rejecting
the application for amendment of the pleadings is that the
Courts generally, as a rule, decline to allow amendment 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
-WP-2097-2023-J.DOC
affect the power of the Court to order it, if that is required in the
interest of justice.
31. In the said case, the Supreme Court also referred to the
decision in the case of Ragu Thilak D. John vs S. Rayappan &
Others10, wherein it was enunciated that whether 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 circumstances the issue of limitation can be
made an issue in the suit itself.
32. The decision in the case of Ragu Thilak (supra) may not,
however, be construed to give a carte blanche to the plaintiff to
seek amendment in the plaint when the relief would be ex facie
barred by limitation, without necessitating an adjudication. The
cases where the issue of limitation appears to be a mixed
question of law and fact, which would be the case in a vast
majority of cases, stand on different footing. In a case like the
one at hand, where, incontrovertibly, the factum of transfer of a
portion of the suit property by defendant Nos.3 to 6 to the
transferee, was made known to the plaintiff in the written
statement itself more than a decade prior to the filing of the
10 (2001) 2 SCC 472.
-WP-2097-2023-J.DOC
application for amendment, the principle in Ragu Thilak (supra)
may not apply.
33. This propels me to the submission of Mr. Dhakephalkar
premised on clever drafting of the proposed text of amendment.
Had the reliefs been sought qua the instrument executed by
defendant Nos.3 to 6 in favour of the transferee, the plaintiff
would have been required to surmount the impediment of bar of
limitation. To wriggle out of the said situation, the plaintiff has
cleverly chosen not to seek such reliefs, urged Mr.
Dhakephalkar. Thus the trial Court rightly tore into the facade
and looked at the real purpose of the amendment and rejected
the application, urged Mr. Dhakephalkar.
34. In the case of Hardesh Ores Pvt. Ltd. (supra) wherein the
plaintiffs had not prayed for the declaration, which they ought to
have prayed, the Supreme Court observed as under:
"39. ........ The appellants ought to have prayed for a
declaration that their agreement stood renewed automatically
on exercise of option for renewal and only on that basis they
could have sought an injunction restraining the respondents
from interfering with their possession and operation. Having not
done so, they cannot be permitted to camouflage the real issue
and claim an order of injunction without establishing the
subsistence of a valid agreement. In the instant suit as well
they could have sought a declaration that the agreement stood
renewed automatically but such a claim would have been
barred by limitation since more than 3 years had elapsed after a
categoric denial of their right claiming renewal or automatic
renewal by the respondents- defendants."
(emphasis supplied)
-WP-2097-2023-J.DOC
35. The aforesaid pronouncement, governs the facts of the
case at hand. The proposed text of the amendment, if
considered in a correct perspective, is but a camouflage to seek
relief qua the Sale Deed dated 5th July, 2010 and an endeavour
to overcome the bar of limitation. In the absence of any
justification for seeking amendment, post commencement of the
trial, the interdict contained in the proviso to Order VI Rule 17
also comes into play.
36. In the totality of the circumstances, in my considered view,
in the facts of the case at hand, the issues of impleadment of
the transferee and the averments in the proposed text of
amendment, are inextricably intermingled. Resultantly, the
plaintiff cannot be permitted to amend the plaint substantially
disguised as an application for impleadment of a necessary
party to the suit, post commencement of the trial.
37. The upshot of the aforesaid consideration is that the
learned Civil Judge cannot be said to have committed any error
in rejecting composite application for impleadment of a party
and amendment in the plaint. Thus, no interference is
warranted in the impugned order.
38. Hence the following order:
-WP-2097-2023-J.DOC
:ORDER:
(i) Petition stands dismissed.
(ii) Rule discharged.
No costs.
[N. J. JAMADAR, J.]
