Shri A.M. Sudame relies on the decision of the Hon'ble Apex Court in Revajeetu Builders and Developers v. Narayanswamy and Sons and others reported in (2009) 10 SCC 84 in which some basic principles which ought to be taken in to consideration while dealing with application for amendment are stated thus :
“63. On critically analysing both the English and Indian
cases, some basic principles emerge which ought to be taken
into consideration while allowing or rejecting the
application for amendment :
(1) whether the amendment sought is imperative
for proper and effective adjudication of the case;
(2) whether the application for amendment is
bona fide or mala fide;
(3) the amendment should not cause such
prejudice to the other side which cannot be compensated
adequately in terms of money;
(4) refusing amendment would in fact lead to
injustice or lead to multiple litigation;
(5) whether the proposed amendment
constitutionally or fundamentally changes the nature and
character of the case; and
(6) as a general rule, the court should decline
amendments if a fresh suit on the amended claims would be
barred by limitation on the date of application.
These are some of the important factors which may be kept
in mind while dealing with application filed under Order VI
Rule 17. These are only illustrative and not exhaustive.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.364 OF 2017
Amartya Surendra Deshmukh, Vs Sau. Sheela w/o Rameshrao Deshmukh,
CORAM : ROHIT B. DEO, J.
DATED : 30 th AUGUST, 2018.
Citation: 2018(5) ALL MR 878, 2018(6) AIR Bom R 72
Heard Shri A.M. Sudame, learned Counsel for the
petitioners and Shri A.S. Dhore, learned Counsel for respondents 1 to
5.
2. The petitioners are aggrieved by the order dated
0712017
rendered by the learned District Judge5,
Amravati in
Regular Civil Appeal 26/2015, by and under which the plaintiffsrespondents
1 o 5 herein in Regular Civil Suit 608/2012 are permitted
to amend the suit plaint.
3. Respondent 1 is the wife of respondent 6 and respondents
2 and 3 are unmarried daughter and son respectively while
respondents 4 and 5 are married daughters of respondent 6.
4. The case of the petitioners is that respondent 6 is the sole
owner of agricultural land admeasuring 2 H. 6 R., which land was
exclusively owned by Late Krushnarao Deshmukh, who died intestate
and the property devolved upon respondent 6 as ClassI
heir. The
petitioners contend that by agreement dated 11112010
they agreed
to purchase the said agricultural land admeasuring 2 H. 6 R. (suit
property) for a consideration of Rs.22.50 Lakh. In view of the payment
of Rs.9.30 Lakh to respondent 6, saledeed
in respect of 1 H 21 R
portion of the suit property was executed in favour of the petitioners
and the possession delivered. The petitioners further contend that they
were ready and willing to purchase the remaining portion of the suit
property, however, respondents 1 to 5 issued legal notice calling upon
the petitioners to cancel the saledeed
of the portion of the suit
property contending that the suit property is ancestral and respondent
6 has no right to alienate the same. The notice was suitably replied by
the petitioners.
5. Respondents 1 to 5 instituted Regular Civil Suit 608/2012
seeking declaration and permanent injunction against the petitioners
and respondent 6, which came to be dismissed by judgment and decree
dated 2812015.
The trial Court held that the suit property was
individual property, having inherited the same from Krushnarao.
6. Respondent 1 to 5 challenged the judgment and decree in
Regular Civil Suit 608/2012 in Regular Civil Appeal 26/2015. In
appeal, respondents 1 to 5 preferred an application under Order VI
Rule 17 of the Civil Procedure Code (“Code” for short) for permission
to amend the plaint. This application dated 2632015
was allowed by
the appellate Court by order dated 0742015,
which order was
challenged by the petitioners before this Court in Writ Petition
2668/2015. The said petition was allowed by order dated 2042016
and the operative part reads thus :
“The order passed by the learned District Judge3,
Amravati dated 07042015
in Regular Civil Appeal
No.26/2015 impugned in this petition is quashed and set
aside.
The respondents/appellants may file fresh
application for amendment, if they are so advised, before
the learned District Judge, Amravati. Needless to state
that the learned District Judge, before whom the appeal is
pending or before whom the application would be moved,
shall decide the same on its own merits and by giving equal
opportunity of hearing to the petitioners and contesting
respondent/s.
Rule is made absolute in the aforesaid terms. No
costs.”
7. Respondents 1 to 5 moved a fresh application under Order
VI Rule 17 of the Code and sought to incorporate paragraph 4A,
which
reads thus :
“4A.
That the father of the defendant No.2 namely
Krushnarao was a son of Ramchandra Sonaji Deshmukh
and before adoption he was known as “Vishwas”. That he
was born to Ramchandra and lateron when he was about
aged 2 years he was given in adoption to Baliramji. That
after the death of Baliramji he was adopted by Umabai wife
of Baliramji Deshmukh and the name of “Vishwas” was
changed in adoption as “Krushna” and thereafter he was
known as “Krushna” Baliramji Deshmukh. That the said
adoption had taken place on 0381922
and as a adopted
son of Baliramji he inherited the suit property being the
adopted son. That Umabai the wife of Baliramji Deshmukh
expired on 1691931
and Krushna being the adopted son
inherited the suit property as son and used to cultivate the
suit property. Thus it is crystal clear that the suit property
inherited by Krushna is the ancestral property and as such
all the plaintiffs after their birth become coparceners of the
undivided ancestral joint Hindu familyproperty
and thus
all the plaintiffs have equal share in the suit property and
the defendant No.2 Ramesh alone has no powers to dispose
of the said suit property in any way or to create any
encumbrances thereon unless there is a family necessity.
That from the income from the ancestral joint Hindu family
property some land was purchased by Krushnarao and,
therefore, it is also a joint Hindu coparcenary property.
That the entire original property was belonging to
Baliramji.”
8. Respondents 1 to 5 averred thus in paragraphs 2 and 3 of
the application seeking amendment :
“2. That after judgment and decree passed by the
Hounourable Civil Judge, Senior Division, Amravati in
Regular Civil Suit No.308/2012 (old Special Civil Suit
No.158/2011) the appellants had approached to the
present counsel along with all record and while perusing
the said record the counsel for the appellants came across
the certified copies of the mutation entries from where he
noticed that the said material document was not at all
filed on record and was not referred. That the document
being material having bearing on the decision on merits
and being very material document to decide the case and
the rights of the parties the amendment was proposed and
the said amendment was also allowed.
3) That recently on verification of the revenue record
the appellants got knowledge regarding origin of the
ownership of the property which clearly demonstrates that
the property described in the plaint was the ancestral
coparcenary joint Hindu family – property. That in view
of the judgment and order of the Honourable High Court it
has become necessary for just decision in the matter to
amend the plaint narrating all the facts therein and,
therefore, the appellants propose the amendment to the
plaint as under.”
9. By the order impugned, the appellate Court was pleased to
allow the application seeking permission to amend the suit plaint and
while considering the objection that in the teeth of proviso to Order VI
Rule 17 of the Code, which provides that no application for
amendment shall be allowed after the trial has commenced unless the
court comes to the conclusion that inspite of due diligence, the party
could not have raised the matter before the commencement of trial, the
appellate Court observed thus :
“3. Having gone through the record and submissions of
the parties, I found that there is pleading about the
property being ancestral. The appellants as contended by
them got the documents recently and from that, it can be
seen whether the property is ancestral or not. The
appellants have no knowledge about the concerned record
and hence they could not get it earlier. When they got
such record they came with this application. I found this is
sufficient cause that despite due diligence the appellant
could not raised such aspect before the commencement of
trial. Thus, the application satisfied the proviso to Order
VI Rule 17 of the Code of Civil Procedure and in order to
have fair, proper and complete adjudication of the matter,
the application Ex.22 needs to be allowed. Hence, the
following order :Order
1) Application Exh.22 is hereby allowed.
2) The appellant shall carry out the necessary
amendment within 14 days from the date of this order.”
10. Shri A.M. Sudame, learned Counsel for the petitioners
would submit that the order impugned militates against the plain
language of Order VI Rule 17 of the Code. Shri A.M. Sudame would
submit that perusal of the application seeking permission to amend
would reveal that no attempt is made to plead much less demonstrate
that the facts pleaded were not within the knowledge of respondents 1 to 5, or that the respondents 1 to 5 could not have raised the matter
inspite of due diligence before the commencement of trial. Shri A.M. Sudame relies on the decision of the Hon'ble Apex Court in Revajeetu Builders and Developers v. Narayanswamy and Sons and others reported in (2009) 10 SCC 84 in which some basic principles which ought to be taken in to consideration while dealing with application for amendment are stated thus :
“63. On critically analysing both the English and Indian
cases, some basic principles emerge which ought to be taken
into consideration while allowing or rejecting the
application for amendment :
(1) whether the amendment sought is imperative
for proper and effective adjudication of the case;
(2) whether the application for amendment is
bona fide or mala fide;
(3) the amendment should not cause such
prejudice to the other side which cannot be compensated
adequately in terms of money;
(4) refusing amendment would in fact lead to
injustice or lead to multiple litigation;
(5) whether the proposed amendment
constitutionally or fundamentally changes the nature and
character of the case; and
(6) as a general rule, the court should decline
amendments if a fresh suit on the amended claims would be
barred by limitation on the date of application.
These are some of the important factors which may be kept
in mind while dealing with application filed under Order VI
Rule 17. These are only illustrative and not exhaustive.”
11. Shri A.M. Sudame then invites my attention to the
observations of the Hon'ble Apex Court in J. Samuel and others v.
Gattu Mahesh and others reported in (2012) 2 SCC 300 in paragraph
19 which read thus :
“19. Due diligence is the idea that reasonable
investigation is necessary before certain kinds of relief are
requested. Duly diligent efforts are a requirement for a
party seeking to use the adjudicatory mechanism to attain
an anticipated relief. An Advocate representing someone
must engage in due diligence to determine that the
representations made are factually accurate and sufficient.
The term “due diligence” is specifically used in the Code so
as to provide a test for determining whether to exercise the
discretion in situations of requested amendment after the
commencement of trial.”
12. The substratum of the submissions canvassed by Shri A.M.
Sudame is that it is not pleaded much less demonstrated that the
original plaintiffsrespondents
1 to 5 were not in a position to raise the
matter despite due diligence.
13. The submission of the learned Counsel Shri A.M. Sudame
that the order impugned militates against the plain language of the
statutory provision is not without substance. Paragraph 2 of the
application, which is reproduced supra states that the counsel was
perusing the record and came across the certified copies of mutation
entires which were not placed on record of the trial Court. In
paragraph 3, it is averred that recently on verification of the revenue
record respondents 1 to 5 gathered knowledge of the origin of the
ownership of the suit property. Be it noted, that there is no attempt
made in the said application to demonstrate that inspite of due
diligence the documents were not located or the knowledge of the
origin of the ownership of the suit property could not be gathered. The
date on which the revenue record was inspected is not disclosed. The
application is bereft of necessary particulars. The learned Counsel Shri
A.M. Sudame is justified in submitting that the order impugned is
unsustainable in law.
14. Shri A.S. Dhore, learned Counsel for respondents 1 to 5,
who is supporting the order impugned, invites my attention to the
decision of the Hon'ble Apex Court in Chakreshwari Construction
Pvt.Ltd v. Manohar Lal reported in 2017(5) Mh.L.J. 195, to buttress
the submission that amendment can be sought at any stage of the
proceedings provided the amendment proposed is bona fide, relevant
and necessary for deciding the rights of the parties involved in the suit.
The submission, as a proposition of law is unexceptionable. But then
the entitlement to seek leave to amend is subject to the rider and rigors
of the proviso to Rule 17 of Order VI of the Code.
15. Shri A.S. Dhore invites my attention to an application
seeking permission to place on record certain documents, which is
allowed by the appellate Court. The submission is, since the appellate Court has allowed the application seeking permission to produce the documents on record, and the said order is not challenged, this Court ought not to interfere with the order impugned. The submission is noted only for rejection. The application to which my attention is invited merely seeks permission to produce on record certain
documents. Concededly, no application is preferred under Order XLI
Rule 27 of the Code seeking permission to adduce additional evidence.
Shri A.S. Dhore then states that respondents 1 to 5 would prefer an
application under Order XLI Rule 27 of the Code. It is trite law that if
such application is preferred, the same shall have to be considered at
the time of final hearing of the appeal. If such application under Order
XLI Rule 27 of the Code is preferred, the same shall undoubtedly be
decided by the appellate Court on its own merits uninfluenced by any
observation made in this order or in the order impugned and in the
event such application under Order XLI Rule 27 of the Code is allowed,
respondents 1 to 5 would be at liberty to move an appropriate
application seeking permission to amend the suit plaint, which again
would have to be considered by the appellate Court on its own merits.
However, irrespective of the applications moved, the appellate Court
shall finally dispose of the appeal on or before 30112018.
16. The order impugned is quashed and set aside.
17. Rule is made absolute in the above stated terms.
JUDGE
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