Bombay High Court
Chandrakant Dattatraya Ruikar Dead ... vs Mukund Sawalarampant Ruikar And ... on 12 September, 2025
2025:BHC-AUG:24657
1 wp12730.2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.12730 OF 2023
1. CHANDRAKANT S/O DATTATRAYA RUIKAR (DEAD)
THROUGH LEGAL REPRESENTATIVES
1-A Vivek S/o Chandrakant Ruikar
1-B Rahul S/o Chandrakant Ruikar
1-C Vidyadhar S/o Chandrakant Ruikar
1-D Sunita W/o Chandrakant Ruikar
Above all R/o.: Rui, Tq. Georai,
District Beed .. Petitioners
(Original Plaintiffs)
Versus
1. MUKUND S/O SAWALARAMPANT RUIKAR
2. APARNA ASHOK VYAWHARE .. Respondents
(Original Defendants)
...
Advocate for Petitioner: Mr. A. D. Sonkawade
Advocate for Respondent No.1: Mr. Arvind S. Deshmukh
...
CORAM : ARUN R. PEDNEKER, J.
RESERVED ON : 22.08.2025
PRONOUNCED ON : 12.09.2025
JUDGMENT:
1. Heard. With the consent of parties, the matter is taken
up for final hearing.
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2. By the present petition, the petitioners challenges the
impugned order dated 03.05.2023, passed below Exhibit-311 by
the learned 2nd Joint Civil Judge Junior Division, Georai, District
Beed, whereby the Hon'ble Judge was pleased to partially allow the
application filed by respondent no.1 (Defendant No.1) under
Section 114 of the Code of Civil Procedure, 1908 (CPC) seeking
review of the order passed on 12.01.2023 below Exhibit-306.
3. The facts giving rise to the petition in brief are
summarized as under.
The petitioners filed Regular Civil Suit No.130/2004
seeking perpetual injunction against the defendants with respect to
that suit property and also praying for declaration that the sale
deed bearing no.2041/2004, dated 20.04.2004 is not binding on
the plaintiff. The petitioners filed an application at Exhibit-306,
under Order VI Rule 17 read with Section 151 of the Civil
Procedure Code, 1908 (hereinafter referred as 'CPC') seeking
amendment to the claim clause by adding declaratory relief of the
plaint, so also, respondent no.2 being real sister of the deceased -
original plaintiff, she is necessary for the adjudication of the
dispute and, as such, sought amendment to implead respondent
no.2 as a party defendant no.5 in the suit. On 12.01.2023,
application at Exhibit-306 was allowed by the civil court.
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Thereafter, respondent no.1 filed application for review under
Section 114 of the CPC seeking review of order dated 12.01.2023,
which is partly allowed by the impugned order dated 03.05.2023.
By the impugned order, the civil court has partly reviewed it's
order dated 12.01.2023 and partly dismissed the application for
amendment to the extent of amending the claim clause of the
plaint for adding declaratory relief.
4. The learned counsel for the petitioners has made two
fold submissions. First submission is that once the application at
Exhibit-306 is allowed it was not available to the subsequent judge
taking over the suit to review the order passed on merits by his
predecessor judge and order dated 12.01.2023, at Exhibit-306,
should have been challenged by the aggrieved party in an
appropriate appellate proceedings. Second submission is that, in
any event, the amendment claimed is formal in nature and based
on facts already pleaded in the plaint along with necessary prayer
and necessary for clarity and for decision on merits of the case and
the court has rightly allowed Exhibit-306.
5. Per contra, learned counsel appearing for respondent
no.1 (Original Defendant No.1) has submitted that the suit filed by
the plaintiff is for simplicitor injunction restraining the defendant
from peaceful possession of the suit property and another prayer is
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made in the plaint seeking declaration that sale deed dated
20.04.2024 is not binding on the plaintiffs. The respondent had
earlier filed another application at Exhibit-68 pointing out that
apart from prayer of injunction the suit contains prayer for
declaration for which court fees are not paid by the plaintiff. The
said application was replied by the plaintiff by Exhibit-72, wherein
it is specifically pleaded by the plaintiff that there is no question of
court fees; as the matter pertains to permanent injunction.
Therefore, it is submitted that the plaintiff has specifically waived
his rights to prosecute the second prayer for declaration that the
sale deed is not binding upon the plaintiff. Thus, the amendment to
the claim clause to include "declaratory relief" would run counter
to the earlier stand of the plaintiff.
It is submitted that the plaintiff himself has filed
application at Exhibit-184, wherein it is specifically mentioned that
the suit is for permanent injunction and the application was filed
for withdrawal of the suit and for liberty to file a fresh suit, which
was rejected.
It is further submitted that the plaintiff has filed the
suit in the year 2004 bearing RCS No.130/2004 and after
contesting the above said two applications, the suit has proceeded
for evidence and, at present, the suit is for cross-examination of the
defendants and the application is filed by the plaintiffs under Order
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VI Rule 17 r/w. Section 151 of CPC at Exhibit-306 and requested
the court that at the time of filing of the suit, inadvertently and by
slip of mind, the plaintiffs could not add the words "for
declaration" in the claim clause of the plaint and, therefore, the
plaintiffs may be allowed to amend the same and insert the same in
claim clause and also to add defendant no.5 as party defendant.
Exhibit-306 was allowed by the civil court by order dated
12.01.2023. Thereafter, the application is filed by the defendant /
respondent for review of the order dated 12.01.2023. It is
submitted by the defendant that the plaintiffs had filed reply to the
earlier application filed by the defendant at Exhibit-68 and had
waived their rights seeking declaration that the sale deed is not
binding. The plaintiffs have themselves relinquished their rights
and submitted before the civil court that the present suit is not for
declaration and the plaintiffs are now estopped from reopening and
taking a different stand, which they took at the time when the
application at Exhibit-68 was being heard.
It is further submitted that the suit has substantially
proceeded and that the suit is filed in the year 2004 and the rights
for declaration are waived in the year 2005 by filing Exhibit 72,
which is a Say on Exhibit 68 and the application for amendment is
filed after the lapse of about 18 years in the year 2022.
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6. It is further submitted that the law on the point of
amendment is clear that, the pleadings can be amended liberally
uptill stage of commencement of trial, but the proviso to Order VI
Rule 17 CPC does not permit amendment to pleading after
commencement of trial unless the party seeking amendment shows
due-diligence i.e. the amendment prayed could not have been
prayed earlier by the party.
CONSIDERATION:-
7. After hearing the learned counsel for the parties
following points arise for consideration,
{1} whether the amendment application at Exhibit-306
could have been allowed by the civil court ?
and,
{2} if, the amendment is allowed, even if erroneously,
whether the civil court could have reviewed the order
allowing amendment ?
8. Perused the material on record and the submissions of
the parties. The suit is titled for perpetual injunction and the
prayers made in the suit are as under:
" HENCE PRAYER
It is prayed that the suit of the plaintiff may kindly be
decreed with cost.
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1) That the defendant may kindly be restrained
permanently from obstructing the peaceful possession over
the suit land of the plaintiff.
2) That it is also declare that the sale deed No.2041/04
dated - 20.04.2004 is not binding on plaintiff.
3) That any other proper relief which may be fit may be
awarded to plaintiff."
9. After filing of the written statement the defendant /
respondent also filed an application at Exhibit-68 with the prayer
that the suit is insufficiently stamped as there is a prayer of
declaration and ad-valorem fees on the consideration of the sale
deed amount of Rs.02,05,000/- is required to be paid and the suit
cannot be entertained unless and until sufficient court fees is paid
and the suit be rejected due to insufficient court fees.
10. In response to Exhibit-68, reply was filed by the
plaintiff that the suit is neither for cancellation of the sale deed nor
is it for the sale deed to be declared null and void. In the reply
application at Exhibit-72, it is also stated that the suit is primarily
for perpetual injunction. It is also mentioned by the plaintiff in the
alternative prayer that if the plaintiff succeed to prove that the
sale deed is not out and out sale then it may declare that it is not
binding on the plaintiff. It is also therefore stated that there is no
reason for payment of ad valorem court fees on the value of the
sale deed. In view of the reply filed, Exhibit-68 was dismissed,
wherein it is observed that the main issue is that the suit is for
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permanent injunction and, therefore, Section 6(iv)(d) of the
Bombay Court Fees Act, 1959 is not applicable. It is specifically
observed by the court in order dated 07.01.2006, on Exhibit-68, as
under:
" ...In this case upon plain reading of the plaint it
appears that in the title column the plaintiff has mentioned
as suit for permanent injunction in prayer column the
plaintiff prayer for declaration of sale deed as not binding
but the main relief is for permanent injunction therefore
Sec. 6 (iv)(d) of Bombay Court Fees Act is not applicable."
11. Application was later on filed by the plaintiff for
withdrawal of the suit and for permission to be granted to file
another suit on the same cause of action. However, the same was
rejected by the trial court.
12. Thereafter, another application for amendment of
plaint at Exhibit-306 is filed by the plaintiffs, wherein it is pleaded
that in the claim clause of the suit be permitted to incorporate the
clause of declaration that the sale deed is not binding and that
defendant no.5 be added as a necessary party. Exhibit-306,
Paragraph No.4, reads as under:
"4. That, however the plaintiffs while filing of the suit
inadvertently and by slept of mind could not add the relief of
not binding of sale deed No.2041 dated 20/04/2004 on
plaintiffs in claim title of the suit hence plaintiffs are
compelled to amend the plaint in claim title for
incorporating the relief of not binding of sale deed in claim
title as under, in claim title after the word injunction "and
not binding of sale deed No.2041/04 dated 20/04/2004 on
plaintiffs" is to be inserted in claim title by way of
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amendment, likewise the plaintiffs intend to add defendant
no.5 as a necessary party to the suit by name "Aparna W/O
Ashok Vyawhare, age 63 years, occupation - household R/O
sureshgad, Datta nagar, Navgan college road Beed TQ. Dist.
Beed. As the plaintiffs has sought the relief of declaration of
not binding of sale deed on plaintiffs, the above proposed
defendant no.5 is a real sister of deceased plaintiffs
chandrakant S/O Dattatraya Ruikar, and as such she is a
necessary party to the suit,"
Reply was filed by the defendant to Exhibit-306 and
after hearing the parties, the trial court was pleased to pass an
order dated 12.01.2023, allowing Exhibit-306. It is observed in the
order dated 12.01.2023, passed by the trial court that by the
application for amendment, the nature of the suit is not changed
except for it's claim clause. In the plaint sufficient pleading of
declaration is already incorporated by the plaintiffs earlier. The
plaintiffs should have brought such an amendment much prior in
time and, since, the amendment does not change the nature of the
suit and there are sufficient pleadings with prayer clause and mere
change in the claim clause of the suit would not be hit by proviso to
Order VI Rule 17 of CPC and, as such, the amendment was allowed.
Thereafter, Review Application Exhibit-311 filed for reviewing the
order dated 12.01.2023, passed in Exhibit-306, and, the order
dated 03.05.2023 passed by the civil court on the Review
Application Exhibit-311 is impugned in the present petition.
13. It is seen that in the plaint that there is sufficient
pleadings stating that the sale deed is not binding upon the
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plaintiffs and supported by prayer in the plaint.. The prayer for
declaration that the sale deed is not binding upon the plaintiff is
made and, as such, merely adding the words in the claim clause in
addition to existing words suit for injunction would not change the
nature of the suit. However, the arguments posed by the learned
counsel for the respondent is that the plaintiff has given up the
prayer for declaration while contesting Exhibit-68 and, since, he
has given up the claim for declaration he was not required to pay
ad valorem court fees. If the said declaratory relief was maintained
and if the suit was not restricted to the prayer of injunction then
the payment of ad valorem court fees ought to have been made by
the plaintiffs.
In this regard, the Judgment of the Division Bench of
this court in the case of Dilip Khushalchand (Srisrimal) Jain Vs.
Hardik Deepakbhai Ramani, 2023 (3) ABR 672 : AIRONLINE 2022
BOM 991, is relevant as it has answered an reference made on
account of conflict of decision of this court on ad-valorem court fees
to the relief of declaration by a plaintiff who is not a party to the
sale deed, more particularly, at paragraphs no.19, 20, 21 & 24, as
under:
"19. Agreement which is not enforceable at law is void. An
agreement is void when it is without consideration, it is
executed by a person not competent to enter into a contract
and by a person who is not of the age of majority, is not of
sound mind and is not disqualified by any law to which he is
subject. The contract is voidable if it is caused by coercion,
11 wp12730.2023
fraud or misrepresentation or by undue influence. In case of
void agreement, the agreement has no legal existence.
Therefore, when a Plaintiff seeks declaration that the
agreement, instrument/deed is void, he wants the entire
agreement to be cancelled. Void agreement has no sanctity
in law. But this is not the case with the Plaintiffs who seek
declaration that the instrument/deed is not binding on him.
The instrument deed may be otherwise valid, but since the
Plaintiff is not a party to the instrument/deed wants the
declaration that the said instrument/deed is not binding on
him. Therefore, in such cases, the Plaintiff need not seek
declaration that the instrument or deed is void. Therefore,
6(iv)(ha) applies only to the persons who seek declaration
that the agreement is void i.e. they challenge the very
legality of the agreement and that it is void. But in case of
the Plaintiffs who seek declaration that the
instrument/deed is not binding on them, they do not
question the execution of the agreement. Their only
contention is that the instrument/deed is not binding on
them. The deed or instrument may be otherwise valid inter
parties. In such cases, the Plaintiffs are not required to seek
declaration that the instrument/deed is void.
20. As held in the case of Common Piru Caudhari (supra)
there is a vast difference between a declaration that any
sale or contract for sale is null and void and the declaration
that sale or contract for sale has no binding effect. In the
former case the very existence of the transaction is
challenged whereas in the latter case existence of the
contract or the instrument is not denied but its effect is
sought to be made not applicable to the person who is not a
party to the instrument or contract. This would mean that
in the latter case, existence of contract is not denied but
declaration is sought by the claimant that the instrument or
contract is not binding on him but it binds the other
executants. In the former case the existence of the contract
itself is under cloud. In such a case the entire contract is
sought to be cancelled whereas in the latter case only the
contract to the extent of the claimant is sought to be not
binding. Therefore, the Plaintiff in both the categories
cannot be placed on the same pedestal. They have to be
treated differently. For the reasons given above, it would be
apposite to make distinction between the Plaintiff who seeks
declaration of cancellation of sale deed and the Plaintiff who
seeks avoidance of sale deed on the ground that he is not a
party to the sale deed.
21. This distinction, if not made, will lead to anomalous
results rather absurd results. A Plaintiff who is a party to
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the sale deed seeks avoidance of sale deed on the ground of
fraud or mistake of fact, coercion, misrepresentation, etc. In
such a case it would be prudent to compute the court fee on
the consideration mentioned in the sale deed. But a person
who is not a party to the sale deed is completely unaware of
the sale deed having been executed. These transactions are
executed behind his back. He comes to know of such a
transaction only after the deed/instrument is executed.
Because of subsequent events he gets the knowledge of the
sale deed having been executed by a person who is not the
owner of the property or by a person selling his own share
and share of other co- owners as well. In such cases, the
Plaintiff has not received consideration of the sale deed. It
would be unreasonable for the plaintiff who has not received
a single farthing or even a penny towards the consideration
mentioned in the sale deed to pay the court fee on the entire
consideration mentioned in the sale deed. In such cases, he
would be penalized twice for no fault of his. First he has lost
his property and second he has to pay court fee on the
entire consideration. Legislature must not be having such
an intention in mind. In the case of the Plaintiff who is a
party to the sale deed stands on a different pedestal. He has
received the entire consideration in the sale deed but for the
reasons enumerated above he seeks avoidance of sale deed
or cancellation of sale deed and seeking declaration that the
instrument/deed is void.
24. From the above discussion in our judgment, Section
6(iv)(ha) would be applicable only to the Plaintiff who is a
party to the sale deed seeking declaration of avoidance of
sale deed. It would not be applicable to the Plaintiffs who are
not party to the instrument seeking declaration of
avoidance of sale deed. Such Plaintiff would be governed by
Section 6(iv)(j) as it is not susceptible to monetary
evaluation."
This court in the case of Dilip Jain (supra) has held
that when the suit is filed by the party to the sale deed for
declaration that the sale deed is void, then ad-valorem court fees
on the value of the property are payable in terms of Rule 6(iv)(ha)
of the Maharashtra Court Fees Act. However, when a third party to
the sale deed makes a prayer in the suit that the sale deed is not
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binding upon him then the ad-valorem court fees in terms of Rule
6(iv)(ha) are not payable on the suit and, as such, the observations
by the civil court that the plaintiffs have given up the claim for
declaration in the reply to application at Exhibit-68, is erroneous.
The civil court has observed that if the claim of declaration of non
binding nature of sale was not given up by the plaintiff, he would
have been liable to pay ad-valorem court fees on the value of the
property is an erroneous observation in view of the Judgment of
this court in the case of Dilip Jain (surpa). There is no amendment
to the plaint giving up prayer for declaration and, as such, merely
because the plaintiff has canvassed the argument in a particular
manner it cannot be said that the claim of declaration is given up
by the plaintiffs. So also, no such ad-valorem court fees become
applicable on the suit, in the event, the prayer is made for
declaration that the sale deed is not binding upon the plaintiff, if
the plaintiff is not a party to the sale deed against which the
declaration is sought.
14. The next submission, which is required to be noted is,
whether the proviso to Order VI Rule 17 of CPC could have barred
to the amendment to the claim clause. For ready reference, Order
VI Rule 17 of CPC is quoted below:
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"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 is spite of due diligence, the
party could not have raised the matter before the
commencement of trial."
The Hon'ble Apex Court in the case of Life Insurance
Corporation of India Vs. Sanjeev Builders Private Limited and
another, 2022 LiveLaw (SC) 729, more particularly, at paragraph
no.70 has summarised the law on amendment to the pleading, as
under:
"70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a
subsequent suit if the requisite conditions for application
thereof are satisfied and the field of amendment of pleadings
falls far beyond its purview. The plea of amendment being
barred under Order II Rule 2 CPC is, thus, misconceived and
hence negatived.
(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 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,
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(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.
(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
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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)"
15. The Hon'ble Supreme Court in the case of Basavaraj Vs.
Indira and others, (2024) 3 SCC 705 , while considering Order VI
Rule 17 of the CPC has held that the proviso to Order VI Rule 17
CPC provides that no application for amendment shall be allowed if
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 the trial and that merely some
oversight, the same cannot be accepted as ground to allow the
amendment of the pleadings at the fag end of the trial.
The Supreme Court also observed that in the case of M.
Revanna Vs. Anjanamma, (2019) 4 SCC 332 the Hon'ble Supreme
Court has held that an application for amendment may be rejected
if it seeks to introduce totally different, new and inconsistent case
or changes the fundamental character of the suit. Order 6 Rule 17
CPC prevents an application for amendment after the trial has
commenced unless the court comes to the conclusion that despite
due diligence the party could not have raised the issue earlier. The
burden is on the party seeking amendment after commencement of
trial to show that in spite of due diligence such amendment could
17 wp12730.2023
not be sought earlier. It is not a matter of right. The Supreme Court
in Basavaraj (supra) further observed that in the case of Revajeetu
Builders & Developers Vs. Narayanaswamy & Sons, (2009) 10 SCC
84 enumerated the factors to be taken into consideration by the
court while dealing with an application for amendment. One of the
important factor is as to whether the amendment would cause
prejudice to the other side or it fundamentally changes the nature
and character of the case or a fresh suit on the amended claim
would be barred on the date of filing the application.
The Supreme Court, thus, having analyzed the facts in
the case observed that the suit is filed for partition and separate
possession and by way of an amendment, relief of declaration of the
compromise decree being null and void was also sought and the
same would change the nature of the suit, which is impermissible
and that a time barred claim to declare the compromise being null
and void and, as such, amendment application was not allowed.
16. The Hon'ble Supreme Court in the case of Dinesh Goyal
Vs. Suman Agarwal (Bindal) and others, MANU/SC/1053/2024
observed that it is the settled rule that the court should adopt a
liberal approach in granting leave to amend pleadings, however,
the same cannot be in contravention of the statutory boundaries
placed on such power. That, any and all delays in judicial processes
18 wp12730.2023
should be avoided and minimised to the largest extent possible, and
should generally be, and are rightly frowned upon. However, not in
all cases can delay determine the fate of a Suit. The court observed
that the object of Order VI Rule 17of Code of Civil Procedure which
is aimed at preventing multiplicity or multiple avenues of litigation,
subsumed under the umbrella of one dispute and, thus, although,
there was no explanation on delay and due diligence on the part of
the plaintiff, the amendment was allowed as to declare the Will as
illegal after the trial had commenced.
17. Thus, considering the judgment passed in the case of
Life Insurance , Dilip Jain, Basavaraj, Dinesh Goyal (supra), this
court is of the view that the amendment of claim clause as prayed
is formal and does not change the nature of the suit and the
predicate facts along with prayer is already in the plaint and the
amendment is necessary for clarity and adjudication of the dispute
at hand. There is a prayer already made and the facts are already
pleaded in the plaint that the sale deed is not binding on the
plaintiffs. Thus, change in the claim clause is formal in nature, so
also, it cannot be said that the plaintiff has introduced a new case
or that he has given up his claim for declaration in view of his reply
filed to the earlier application filed by the defendant for dismissal of
the plaint for non payment of court fees by erroneously valuing the
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suit. Proviso to Order VI Rule 17 of CPC would not defeat the
application for amendment in pleadings in all cases of delay. This
court can exercise it's discretion in a case where the amendment is
prayed after the commencement of trial and the party praying for
amendment is not able to prove due diligence where the
amendment is formal or consequential to the pleadings in the
plaint and is necessary for pin-pointedly adjudication of the
dispute. This court finds that the amendment prayed is not
malafide merely to delay the proceedings and, that, the amendment
is necessary to the suit. The amendment is formal in nature and
the foundational pleadings are already made in the plaint and the
amendment is necessary for complete adjudication.
18. Order XLVII Rule 1 of the CPC provides that the review
can be applied from the discovery of new and important matter or
evidence which, after the exercise of due diligence was not within
the knowledge of the applicant or could not be produced by him at
the time when the decree was passed or order made, or on account
of some mistake or error apparent on the face of the record or for
any other sufficient reason, desires to obtain a review of the decree
passed or order made against him, may apply for a review of
judgment to the Court which passed the decree or made the order.
20 wp12730.2023
19. It is to be seen that review is not an appeal in disguise
and a mere fact that the different view on the same subject is
possible, earlier judgment passed by the court cannot be reviewed.
Review powers are to be exercised for the correction of the
mistake or error apparent on the face of record and not as an
appeal and the errors pointed should not require a long drawn
process of reasoning.
20. While exercising the power of review under Section 114
of the CPC, the civil court has to appreciate that there is a
distinction between the erroneous decision and the error apparent
on the face of record. The erroneous decision can be corrected by
the higher court and only error apparent on the face of record can
be corrected by exercising review jurisdiction. The review petition
has a limited purpose and cannot be allowed as an appeal under
disguise. In the instant case, the application at Exhibit-306 is
adjudicated on merits. However erroneous, the review court does
not have the power to re-examine the issue on merits. Thus, the
impugned order is erroneously passed in exercise of the review
jurisdiction conferred upon it and, thus, is liable to be set aside.
21. Thus, this court answers both the points referred at
paragraph no.7 accordingly i.e. point no.{1} in affirmative; the
order dated 12.01.2023 on the amendment application at Exhibit-
21 wp12730.2023
306 is accordingly maintained and, point no.{2} in negative; that
the civil court has exceeded it's jurisdiction to review the order
passed by the predecessor Judge on merits.
22. The writ petition is accordingly allowed. The impugned
order dated 03.05.2023, passed by the learned 2 nd Joint Civil
Judge, Junior Division, Georai, District Beed below Exhibit-311 is
set aside and the order dated 12.01.2023, passed by the learned 2 nd
Joint Civil Judge, Junior Division, Georai, District Beed below
Exhibit-306 is maintained.
23. The Writ Petition stands disposed of accordingly.
[ARUN R. PEDNEKER, J.]
marathe
