Friday, 17 August 2018

Guidelines of Bombay High court about proper scrutiny of suit by civil judge

 I
deem it appropriate to direct the learned Registrar (Judicial) of
this Court to place a copy of this order before each learned
Principal District Judge in this State so as to bring to the notice
of each Judicial Officer under the respective Judicial district that
a proper scrutiny of the suit shall be performed by the concerned
office of the Courts and in the event of a sketch map being
required to be annexed to the plaints, depending upon the cause
of action in due deference to Order VII Rule 3 of the CPC, the
trial Court shall place such suits in objection category and shall
not proceed with the said suits, until there is a proper

compliance of Order VII Rule 3 of the CPC to avoid further
complications as are visible in the judgments cited in this
proceeding.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1849 OF 2018

DATTATRAYA KASHINATH MANDEKAR Vs CHANGDEO DAGDU KHULE AND OTHERS

CORAM : RAVINDRA V. GHUGE, J.
Dated: February 15 2018
Citation: 2018(4) MHLJ 584

Learned counsel submits, on instructions, that since
respondent Nos.3 to 13 are not contesting respondents and such
a statement has already been made even in the plaint, he seeks
leave to delete respondent Nos. 3 to 13. Deletion is allowed at
the risk of the petitioners / plaintiffs. Deletion be carried out
forthwith.
2. The petitioners are aggrieved by the order dated 8.1.2018
passed by the trial Court, by which, application Exhibit 86
praying for leave to place on record a rough sketch map as an
annexure to the plaint, has been rejected.
3. The plaintiffs have filed RCS No.437 of 2011 for seeking

measurement of the suit land, fixing of the boundaries and for
recovery of the encroached area of about 0.03 gunthas. After the
suit was filed, the Written Statement was entered by the
contesting defendants / respondent 1 and 2 herein, on 3.1.2012.
It was specifically stated in paragraph No.4 of the Written
Statement that the suit deserves to be dismissed on the ground of
a rough sketch map having not been placed on record in
compliance of Order VII Rule 3 of the Code of Civil Procedure
("CPC"). Thereafter, the plaintiffs have sought appointment of
the Court Commissioner, who has submitted his report along
with a map on 23.10.2013. Based on the said report and the
map, the plaintiffs have added prayer clause (C) to the plaint, by
an amendment. The recording of oral evidence of all the
litigating sides had concluded. The final arguments were also
over and the matter was at the stage of delivering a judgment.
However, since Exhibit 73 was filed by the plaintiffs for seeking
an amendment, an additional issue was cast and hence the
matter was relegated to the stage of recording of evidence.
4. At this stage, the plaintiffs preferred application Exhibit 86
on 15.9.2017 making a request that a rough sketch map needs to
be placed on record and the earlier advocate engaged by the
plaintiffs had not advised them to file a rough sketch map as is

required under Order VII Rule 3 of the CPC. By the impugned
order, the trial Court has rejected Exhibit 86, concluding that a
sufficient opportunity was available to the plaintiffs and yet the
rough sketch map was not placed on record even though the
defendants had specifically raised an objection. An issue as
regards maintainability of the suit on that count has also been
framed.
5. The learned counsel for the plaintiffs has relied upon the
following judgments:(
i) Pratibha Singh Vs. Shanti Devi Prasad
( 2002 DGLS (SC) 1043)
(ii) Shri Mohana Kashinath Naik Vs. Shri Prakash Gajanan
Sukthankar Second
Appeal No.69 of 2017 (Goa)
Dated 25.1.2018
(iii) Catarina Fernandes and others Vs. Jose Menino
Rodrigues and another [2013 (1) Mh.L.J. 367 and
(iv) Laxman Wamanrao Nagapure Vs. Shankar
Haribhau Adhau and another [2014 (3) Mh.L.J.791].
6. The contention of the plaintiffs is that as they are
agriculturists and do not have detailed knowledge of the Code of
Civil Procedure, they have totally relied upon their Advocate with
regard to filing of the plaint and manner of conducting the suit.
For some reason, when the Advocate was changed and the new

Advocate studied the entire case, it was informed that a rough
sketch map was not placed on record and this is likely to be fatal
to the suit since the plaintiffs have not acted even though the
defendants had raised an objection in the Written Statement
under Order VII Rule 3 of the CPC. If nonfurnishing
of a rough
sketch map would be fatal, the plaintiffs' suit would be dismissed
even without considering the merits of the matter, as the rough
sketch map is not on record. It is, therefore, urged that the
failure to comply with Order VII Rule 3 of the CPC would result
in the dismissal of the suit. The plaintiffs would have no
opportunity to remove these deficiencies, which are on account
of lack of proper advise by the concerned Advocate.
7. Learned counsel for the contesting defendants has relied
upon the judgment of this Court dated 18.2.2014 in Writ Petition
No.1322 of 2013 delivered at the Nagpur Bench in the matter of
Smt. Jayashree Subhash Kalbande Vs. Bhaurao Nagorao Derkar Writ
Petition No.1322 of 2013, dated 18.2.2014. It is canvassed
that this Court has concluded in paragraph No.10 that inspite of
knowledge, failure by the litigating party or an Advocate in
removing deficiencies, cannot be a matter of amendment.
Learned Advocate, therefore, submits that the ground putforth by
the plaintiff is not sufficient and is not appreciable. The Advocate

of the plaintiffs was alerted by the Written Statement and though
the plaint was once amended, the plaintiffs have failed to comply
with Order VII Rule 3 of the CPC. He, therefore, prays that this
petition be dismissed with heavy costs.
8. The Honourable Apex Court has held in catena of
judgments that if certain defects can be cured before it is too
late, the trial Court with the intention of doing complete justice,
can given such an opportunity to a litigant rather than letting the
litigation progress and a reversal would cause a severe loss of
time, money and energy to the litigating sides.
9. In Laxman Wamanrao (supra), this Court has concluded
in paragraph Nos.14 and 15 as under:"
14. Be that as it may, when the suit is filed for removal
of encroachment from and for the possession immovable
property, the plaintiff is required to take care to comply
with Order VII Rule 3 of the Code of Civil Procedure so as to
describe the suit property which is subjectmatter
of the suit
sufficiently so as to identify appropriately with boundaries
thereof. The plaintiff must be careful to describe the property
by its boundaries, Survey Number/Gat Number with area
mentioning the boundaries on North, East, West and South
of the suit property. Without such description, the trial

Court may not be assisted properly by the plaintiff to pass
an effective decree if it is passed for the removal of
encroachment from the suit land/property in such cases.
15. In the present case, a plaint in Regular Civil Suit No.
73 of 2005 instituted in the Court of Civil Judge Junior
Division, Telhara, mentioned only Survey Number and area
but did not describe the suit land sufficiently by its
boundaries on North, East and West. The plaintiff may after
such description mention as to how much area is encroached
upon approximately by the defendants in respect of which
possession is sought and with or without consequential relief
of damages and/or mesne profits under Order XX Rule 12 of
the Code of Civil Procedure. It appears that the Courts below
overlooked the legal requirement in the plaint under Order
VII Rule 3 of the Code of Civil Procedure. The trial Court
could have insisted upon sufficient and full description in
respect of the suit property in such case."
10. This Court, therefore, passed an order in a Second Appeal
in the case of Laxman Wamanrao (supra) and remitted the
matter back to the trial Court, in a suit which was preferred in
2005 thereby reversing the Clock by almost nine years. In my
view, in the case in hand, such a situation as in Laxman
Wamanrao (supra), can be avoided.
11. The Honourable Apex Court in the matter of Pratibha

Singh (supra), while dealing with Order VII Rule 3, Order XX
Rule 3 and Section 47 read with Section 152 of the CPC,
concluded that identification of an immovable property is a
curable defect. It was concluded that such a defect, which
remained in the suit, overlooking Order VII Rule 3 and Order XX
Rule 3, can be cured by resorting to Section 152 or Section 47.
12. I find that the observations of the Honourable Apex Court
in Pratibha Singh (supra), in paragraph No.14, in fact deserves
to be brought to the notice of every trial Court. The said
observations, in paragraph No.14 read as under:"
14. Order 7 Rule 3 of the CPC requires where the subjectmatter
of the suit of the suit is immovable property, the
plaint shall contain a description of the property sufficient
to identify it. Such description enables the Court to draw a
proper decree as required by Order 20 Rule 3 of the CPC. In
case such property can be identified by boundaries or
numbers in a record for settlement of survey, the plaint shall
specify such boundaries or numbers. Having perused the
revenue survey map of the entire area of R.S. plot No. 595
and having seen the maps annexed with the registered sale
deeds of the defendant judgmentdebtors
we are clearly of
the opinion that the subplots
595/I and 595/II were not
capable of being identified merely by boundaries nor by
numbers as subplot
numbers do not appear in records of

settlement or survey. The plaintiffs ought to have filed map
of the suit property annexed with the plaint. If the plaintiffs
committed an error the defendants should have objected to
promptly. The default or carelessness of the parties does not
absolve the Trial Court of its obligation which should have,
while scrutinizing the plaint, pointed out the omission on
the part of the plaintiffs and should have insisted on a map
of the immovable property forming subjectmatter
of the suit
being filed. This is the first error." (Emphasis supplied).
13. It is, therefore, obvious that the Honourable Apex Court
concluded that the default or carelessness of the litigating sides
would not absolve the trial Court of it's obligations while
scrutinizing the plaint. By pointing out the omission on the part
of the plaintiff, the trial Court should have insisted on a map of
the immovable property, which becomes a part of the plaint and
subject matter of suit under Order VII Rule 3 of the CPC. I,
therefore, find that it would be an obligation of this Court to
bring this matter, specifically, to the notice of all the trial Courts
in this case.
14. The Apex Court then concluded in Pratibha Singh Case
(supra), in paragraph Nos.15 and 16 as under:"
16. The second error was committed during the execution

proceedings. Under Order 21 Rule 32 of the CPC a decree for
specific performance of a contract, on failure to obey, may
be enforced by the judgmentdebtor
being detained in civil
prison. Order 21 Rule 34 provides the procedure for
execution of documents pursuant to a decree. Where a decree
is for the execution of a document the decree holder may
prepare a draft of the document in accordance with the
terms of the decree and deliver the same to the court.
Thereupon the court shall cause the draft to be served on the
judgmentdebtor
together with a notice requiring his
objections, if any, to be made out within time as the court
fixes in this behalf. Where the judgmentdebtor
objects to the
draft, his objections shall be stated in writing and then
determined. The draft shall be approved of altered
consistently with the finding arrived at by the Court. In the
present case the plaintiffdecree
holders pointed out that the
defendant judgmentdebtors
were aware of the contents of
the draft sale deed. The fact remains that the draft sale deed
accompanied by a notice requiring objections to be made by
judgmentdebtor
as provided by Subrule
2 of Rule 34 of
Order 21 of the CPC was not caused to be served by the
Court. The record also reveals the judgmentdebtors
repeatedly insisting, may be dogmatically, on draft sale deed
being delivered to them enabling objections being filed.
There is no determination by the Executing Court that the
immovable property as delineated and demonstrated in the
map accompanying the draft sale deed was the property
forming subjectmatter
of agreement to sell and the decree.
Inasmuch as the possession is yet to be taken by the plaintiff
decree holders this aspect can still be taken care of and that

we shall do by making an appropriate direction in the
operative part of this order.
16. When the suit as to immovable property has been
decreed and the property is not definitely identified, the
defect in the court record caused by overlooking of
provisions contained in Order 7 Rule 3 and Order 20 Rule 3
of the CPC is capable of being cured. After all a successful
plaintiff should not be deprived of the fruits of decree. Resort
can be had to Section 152 or Section 47 of the CPC
depending on the facts and circumstances of each case which
of the two provisions would be more appropriate, just
and convenient to invoke. Being an inadvertent error, not
affecting the merits of the case, it may be corrected under
Section 152 of the CPC by the Court which passed the decree
by supplying the omission. Alternatively, the exact
description of decretal property may be ascertained by the
Executing Court as a question relating to execution,
discharge or satisfaction of decree within the meaning of
Section 47 CPC. A decree of a competent Court should not,
as far as practicable, be allowed to be defeated on account of
an accidental slip or omission. In the facts and
circumstances of the present case we think it would be more
appropriate to invoke Section 47 of the CPC." (Emphasis
supplied).
15. This Court, in Second Appeal No.69 of 2017, has
delivered a judgment on 25.1.2018 at the Goa Seat, while
dealing with breach of Order VII Rule 3 of the CPC. It was

concluded in paragraph Nos.12 to 14 as under:"
12. A comparison of the Bombay High Court amendment
with the original rule would clearly show that it is
substantially on similar lines except that the High Court
amendment provides that in case of an encroachment a
sketch showing 'as approximately as possible' the location
and extent of encroachment shall also to be filed along with
the plaint. In the present case the respondents/plaintiffs had
filed a suit for mandatory and prohibitory injunction. The
mandatory injunction is in respect of the structure which is
to the north west corner of survey no.36/1. The learned trial
court refused to grant the mandatory injunction on the
ground that the identity of the said structure is not
established, which finding has been reversed by the first
appellate court. The question is whether the said finding can
be said to be perverse or infirm in the absence of compliance
of Order 7 Rule 3 of C.P.C. The Supreme Court in the case of
Prathibha Singh and Ors. (supra) had an occasion to
consider the provisions of Order 7 Rule 3 of C.P.C. It has
been inter alia held that in a suit of the present nature the
plaintiff ought to have filed a map of the suit property
annexed to the plaint. However, if the plaintiff commits an
error, it is for the defendants to object to it promptly. It has
further been held that the default and the carelessness of the
parties does not absolve the trial court of its obligation
which should have been done while scrutinizing the plaint
pointing out the omission on the part of the plaintiffs and
should have insisted on a map of the property forming
subject matter of the suit. In para 17 the Hon'ble Supreme
Court has held thus:

(Paragraph 16 of Pratibha Singh (supra) is reprodued).''
13. It can thus be seen that as held by the Supreme Court
that the irregularity with regard to non compliance of Order
7 Rule 3 of C.P.C. is held to be curable. It has specifically
been held that a successful plaintiff should not be deprived
of the fruits of decree.
14. In my considered view merely on account of the fact
that the said decision was not rendered in the context of
Order 7 Rule 3 of C.P.C., as amended by the Bombay High
Court, would not make any difference because the basic
principles as laid down by the Supreme Court would still
apply. Thus the contention that the decision in the case of
Prathibha Singh is distinguishable to my mind cannot be
accepted. "
16. This Court has, therefore, held in the light of Pratibha
Singh (supra) that noncompliance
of Order VII Rule 3 is a
curable defect. A similar view has been taken by this Court at the
Goa Seat in Catarina Fernandes (supra) and has concluded in
paragraph No.18 as under:"
18. Since case of the plaintiffs is specifically that all the
encroachments fall within the suit property bearing survey
no. 280/3 and that the said suit property belongs to them,
the question of filling of sketch under Order VII Rule 3 of the
C.P.C., showing the extent of encroachments, does not arise
and nonproduction
of such sketch would not be fatal.

Substantial question no. III therefore gets answered in
favour of the plaintiff."
17. Learned counsel for the contesting defendants has relied
upon the judgment of this Court delivered at the Nagpur Bench
in the matter of Smt. Jayashri (supra), observations of which are
reproduced as under:".....
The law laid down by the Apex Court as is summarized
in clause (b) in the earlier para, clearly indicates that the
due diligence is distinct from ignorance. In spite of
knowledge, ignorance by party or an advocate cannot be a
matter of due diligence The neglect to perform an
action which one has an obligation to do cannot be
called as a mistake. The Apex Court has also taken a view
that the degree of prejudice to the other side by an
amendment after the commencement of trial is greater than
one at pretrial stage. Unless this hurdle is crossed of due
diligence, it is not permissible to allow the application
for amendment after the commencement of trial. In the
absence of a case of due diligence being made out in the
pleadings, the trial Court could not have allowed the
application for amendment."
18. There can be no debate on the issue of due diligence and
more so in the light of the contention of the defendant that an
amendment was earlier carried out and though the defect was
pointed out in the Written Statement, the plaintiffs have not

attempted to cure the said defect. It is equally true that the
petitioners have faltered in so far as due diligence is concerned.
Though ignorance of law is no excuse, it cannot be overlooked
that these plaintiffs are agriculturists with their origins in rural
areas. They completely rely upon the assistance of an Advocate
in conducting their suits. If an Advocate, in a given situation
appears to be ignorant of Order VII Rule 3 and is not alert even
after the defendants point out the deficiency through the Written
Statement, it would be a disaster for such plaintiffs, who are
bound to suffer an adverse order in a suit which pertains to their
agricultural land.
19. As has been concluded by this Court in Mohana Naik
(supra) and Caterina (supra), that such a defect deserves to be
cured and for which purpose the Second Appeals were allowed
and the matters were remitted to the trial Court after a litigating
journey of about 9 to 10 years. In my view, such a situation can
be averted in this case as the stage in the suit is now for
recording of evidence post framing of an additional issue. So also
the suit is of the year 2011 and it cannot be said that it is more
than ten years' old. Nevertheless, the rigours of the contesting
defendants can be reduced by imposing costs upon these two
plaintiffs.

20. As such, this petition is allowed. The impugned order
dated 8.1.2018 is quashed and set aside and application Exhibit
86 is allowed by imposing costs of Rs.10,000/which
both these
petitioners shall deposit jointly in the trial Court on 26.2.2018
when the matter is posted before the trial Court. Both these
defendants, namely, Changdeo Dagadu Khule and Bhaskar
Dagadu Khule shall withdraw the said costs, in equal proportions
of Rs.5,000/without
any conditions.
21. Considering the above and in the light of the observations
of the Honourable Apex Court in Pratibha Singh case (supra), in
the underlined portion of paragraph No.14, reproduced above, I
deem it appropriate to direct the learned Registrar (Judicial) of
this Court to place a copy of this order before each learned
Principal District Judge in this State so as to bring to the notice
of each Judicial Officer under the respective Judicial district that
a proper scrutiny of the suit shall be performed by the concerned
office of the Courts and in the event of a sketch map being
required to be annexed to the plaints, depending upon the cause
of action in due deference to Order VII Rule 3 of the CPC, the
trial Court shall place such suits in objection category and shall
not proceed with the said suits, until there is a proper

compliance of Order VII Rule 3 of the CPC to avoid further
complications as are visible in the judgments cited in this
proceeding.
( RAVINDRA V. GHUGE, J. )

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