The matter in hand would go to show that the petitioner/ defendant being illiterate and pardanashin lady was in fact unable to understand the pleadings in the written statement and therefore, in order to do justice effectively, the proposed amendment which is in the nature of clarification, ought to have been considered by the learned First Appellate Court. However, while taking hyper technical aspect and without considering the status of the defendant, such amendment was rejected. {Para 30}
31. To my mind, the impugned order suffers from improper exercise of jurisdiction. No doubt, the proposed amendment/facts were to the knowledge of the defendant when she filed the written statement, that ground could have been considered qua the status of the defendant being illiterate and pardanashin lady. At the most,costs could have been imposed since the proposed amendment is not in a mala fide manner and certainly it is not causing any prejudice to the plaintiff.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1608 OF 2021
Hasinabi w/o Abdul Latif Vs Mohammad Sharif S/o Abdul Rajjak,
CORAM : B.P. DESHPANDE, J.
PRONOUNCED ON : 7TH MARCH, 2024
Heard.
2. Rule. Rule is made returnable forthwith. The matter is
taken up for final disposal with consent at the admission stage itself.
3. By way of present petition, the petitioner is challenging the
impugned order dated 13/02/2020, passed by the First Appellate
Court, thereby rejecting prayer for amendment of the written
statement.
4. Mr.Manohar, learned counsel appearing for the petitioner,
would submit that the amendment which is sought is only clarificatory
in nature. He submits that the petitioner/defendant No.1 is illiterate
pardanashin lady and therefore, she was unable to understand the
pleadings in the written statement filed by her in the suit.
5. Mr.Manohar, learned counsel for the petitioner, would
submit that suit was filed by the respondent No.1/plaintiff for
declaration and possession of the suit plot, wherein the
petitioner/defendant No.1 contested the matter. However, her specific
defence raised regarding gift deed by which the suit property was
gifted to her by the plaintiff, is not accepted only because there are no
proper pleadings in the written statement with regard to the
description of stamp, the date of execution of gift deed, etc. He would
submit that such findings are found in para-13 of the judgment of the
Trial Court, which is challenged in an appeal filed before the District
Court. He would further submit that even a challenge in the appeal is
in connection with framing of issues improperly by the learned Trial
Court.
6. Mr. Manohar, learned counsel for the petitioner, would
submit that in order to do complete justice to the parties, it is
necessary to amend the written statement, as the proposed
amendment is not going to change the nature of the suit or the
defence as well as will not in any manner cause prejudice to the
respondent No.1/plaintiff. He submits that such proposed amendment
is necessary only to incorporate the details of the gift deed.
7. Mr.Manohar, learned counsel for the petitioner, while
placing reliance upon the case of Chakreshwari Construction Private
Limited v. Manohar Lal, reported in (2017) 5 SCC 212, would submit
that earlier decision of the Hon’ble Apex Court in the case of Revajeetu
Builders and Developers v. Narayanaswamy & Sons, reported in
(2009) 10 SCC 84, principles in para-63 of the said decision were laid
down while considering the amendment application. He submits that
the amendment proposed is imperative for proper and effective
adjudication of the case and that such amendment is bona fide filed.
Similarly, such amendment would not cause prejudice to the other
side, which cannot be compensated adequately in terms of money. He
would further submit that refusing such amendment would certainly
lead to injustice to the petitioner.
8. Mr.Manohar, learned counsel for the petitioner, while
placing reliance in the case of Egidio Braganza and another v. Lino
Agnelo Fernandes and others, reported in 2016 SCC OnLine Bom
3962, wherein the learned Single Judge of this Court observed that
when the nature of amendment is relevant for clarifying the matter in
respect of which foundation is laid in the written statement, must
receive more liberal consideration.
9. Per contra, Mr.Tejas Deshpande, learned counsel appearing
for the respondent No.1/original plaintiff, would submit that the
amendment is filed only to fill up the lacunae and to counter the
findings of the learned Trial Court, which cannot be permitted at a
belated stage. He would submit that the petitioner/defendant No.1 in
her written statement nowhere claimed such details when in fact such
details were known to her. There are no specific reasons disclosed as
to why such details were not incorporated in the original written
statement. He would therefore submit that reasons given in the
amendment application are not genuine and thus rejection of such
amendment cannot be interfered.
10. Mr.Deshpande, learned counsel for respondent
No.1/plaintiff, while relying upon the decision in the case of
Shivshankara & Anr. v. H.P.Vedavyasa Char, reported in 2023 LiveLaw (SC) 261, would submit that amendment at the appellate stage could be allowed only in exceptional circumstances but not otherwise. He would submit that in the present matter there is absolutely no explanation and further the case of the petitioner cannot be considered as exceptional for allowing such amendment.
11. Rival contentions fall for determination.
12. It is an admitted fact that the petitioner and respondent No.1
are related. The respondent No.1 is the original plaintiff, whereas
petitioner is the original defendant No.1. The parties are called as
‘plaintiff and defendant’ as arrayed in the plaint for the purpose of
convenience.
13. The plaintiff filed a suit for declaration, perpetual injunction
and possession against the defendant. The plaintiff claimed that he
purchased the suit property vide sale deed dated 25/02/1994 and
since then he is the owner in occupation of the suit property. The
defendant/petitioner herein is admittedly the real sister of the
plaintiff/respondent No.1. The defendant is residing in the same
village along with her husband, wherein the suit property situates,
whereas the plaintiff is residing in village Warud. The suit property is
situated in village Raipur, Tahsil and District Buldhana.
14. It is further case of the plaintiff that somewhere in November
2011, defendant taking advantage of the confidence of the plaintiff
and during his absence succeeded in inserting her name in the
property register of Record of Rights qua the suit property by mutation
entries, under the pretext of a false and concocted gift deed. The
plaintiff claimed that no such gift deed was executed in favour of the
defendant, however, she managed to record the mutation entries in
her name by falsely representing that the plaintiff gifted this property
to her. When the plaintiff obtained certified copies of the survey
records, he realized about the mutation entries behind his back and
therefore, he approached the Civil Court to declare such mutation
entry as null and void and claimed possession from the original
defendant No.1.
15. The defendant resisted the said suit by filing written
statement, wherein she claimed that the suit property was purchased
by her husband in the name of plaintiff and subsequently, it was
agreed that the plaintiff would transfer the suit property in the name
of defendant. When the plaintiff failed to transfer such property to the
defendant, the matter was considered by the elders in the family
members and thereafter it was referred to the Committee of the
village for resolving the dispute. During such talks, a solution was
suggested and accordingly, the plaintiff executed a gift deed in favour
of the defendant. On the strength of such gift deed, the suit property
was gifted to the defendant by the plaintiff and accordingly, the
mutation entries were made.
16. The learned Trial Court after considering the relevant
pleadings, framed various issues, which are found in internal page-6
of the Trial Court’s decision dated 30/11/2013. Issue Nos.1 to 5 show
that the burden is casted upon the defendant, whereas Issue Nos.6
and 7 are only on the plaintiff to prove. After leading evidence, the
learned Trial Court rejected the contention of the defendant regarding
the gift and findings in para-13 qua Issue Nos.3 and 4 would go to
show that such evidence was discarded only on the ground that there
are no pleadings in the written statement. At this stage, it is necessary
to note that Issue Nos.3 and 4 are with regard to the gift deed dated
21/09/2007 and the burden is on the defendant to prove that the gift
deed was executed voluntarily and whether the said gift deed is valid
document.
17. The defendant No.1 being aggrieved by such judgment
passed in favour of plaintiff, preferred Regular Civil Appeal No.2 of
2014 before the District Court and one of the grounds raised therein is regarding framing of issues improperly.
18. During the pendency of said appeal, the petitioner/
defendant filed an application for amendment of the written
statement. In the said amendment application, it is claimed that
though in the written statement, the defendant has disclosed about
the gift deed, however relevant details of the gift deed were not
properly explained/pleaded. Thus, the defendant claimed that she be
allowed to amend the written statement by incorporating proposed
paras-19 to 23, which discloses the relevant details about the gift deed
including the boundaries, area, etc. It further proposes to amend the
written statement to incorporate fact that the plaintiff did not raise
any pleadings or even prayer with regard to cancellation of gift deed
being void on the ground that it was a fabricated document. It is also
claimed in the proposed amendment that the defendant is illiterate
and pardanashin lady and therefore, she was unable to understand the
pleadings in the earlier written statement. She claimed that the
proposed amendment remained to be incorporated due to a drafting
error.
19. The learned First Appellate Court vide the impugned order
dated 13/02/2020, though considered the relevant decisions cited by
the parties, rejected such application on the ground that all the
proposed amendment details were already known to the defendant
and that the proposed amendment is not in the nature of subsequent
development. The learned First Appellate Court further observed that
there is nothing in the application, which would satisfy the Court as to
why proposed amendment could not have been introduced earlier.
Finally, the learned First Appellate Court observed in para-4 that the
defendant failed to exercise due diligence while filing the written
statement and therefore, such amendment at belated stage cannot be
allowed.
20. It is well settled proposition of law that the amendments
which are clarificatory in nature, not changing the nature of the claim
or the relief and not having any effect or causing prejudice to the
other side could be liberally allowed.
21. It is also well settled proposition of law that the amendment
could be allowed even at the stage of second appeal if proper reasons
are forthcoming and that such amendment is necessary for the just
decision of the suit.
22. In the case of Revajeetu Builders (supra), Hon’ble Apex
Court culled out principles in para-63 which read thus -
“13. The principle applicable for deciding the application made for
amendment in the pleadings remains no more res integra and is laid
down in several cases. In Revajeetu Builders and Developers v.
Narayanaswamy & Sons, this Court after examining the entrie
previous case law on the subject culled out the following principle in
para 63 of the judgment which reads as under: (SCC p.102)
63. On critically analyzing 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.”
3 (2009) 10 SCC 84 : (2009) 4 SCC (Civ) 37
23. First of all, the Court is required to adjudicate whether the
amendment sought is imperative for proper and effective adjudication
of the case. The matter in hand would go to show that the defendant
though sister of the plaintiff, she is illiterate and pardanashin lady and
therefore, the written statement filed by her was not elaborate.
However, the fact remains that she laid the foundation in the written
statement by disclosing that the suit plot was purchased by her
husband in the name of plaintiff with an understanding that the same
shall be transferred in her name. While complying with such
understanding, the plaintiff executed a gift deed in favour of
defendant and accordingly, the mutation entries were carried out.
Thus, it is clear from the pleadings in the original written statement
about the stand taken by the defendant in connection with the gift
deed. The proposed amendment is only to clarify the contents of the
gift deed. No doubt, all these details were known to the defendant,
however, the fact remains that she being illiterate and pardanashin
lady, was unable to understand the intricacies of the pleadings and the
requirement thereof.
24. Secondly, the Hon’ble Apex Court observed that the
application for amendment needs to be bona fide filed and that there
should not be any mala fide intention. The matter in hand would go
to show that the proposed amendment is only to clarify the gift deed
and there is no mala fide intention on the part of defendant which
prima facie reveal to delay the proceedings or to distract the said
proceedings.
25. Thirdly, the proposed amendment would not cause any
prejudice to the plaintiff which cannot be compensated adequately in
terms of money. Admittedly, the appeal is pending and therefore, it is
clear that the defendant is challenging the findings of the Trial Court
which referred to absence of pleadings of the gift deed. At the most,
by imposing some costs, the plaintiff could be compensated while
allowing the amendment application.
26. As against this, by refusing such amendment, it would in fact
lead to injustice or to multiple litigation for the simple reason that the
plaintiff though referred in the plaint about the gift deed, alleged that
it was a false and fabricated document, without challenging it in the
suit. Thus, on one hand, the plaintiff asked for declaration of the
entries in the Revenue Records as null and void, conveniently avoid to
challenge the gift deed as null and void. Thus, the gift deed remains
without any declaration which could lead to multiplicity of litigation.
27. The fact remains that the proposed amendment is not
changing the nature and the character of the defendant and thus, this
aspect is also in favour of the defendant. Finally, the proposed
amendment cannot be considered as barred by limitation as the
defendant is not seeking any relief by incorporating such defence
which is only by way of clarification to her earlier pleadings. It is no
doubt true that such amendment has been filed at the appellate stage
and therefore, if considered necessary, could be allowed by imposing
some costs.
28. In Chakreshwari (supra), the Hon’ble Apex Court in para-16
observed that in appropriate cases the parties are permitted to amend
their pleadings at any stage not only during the pendency of trial but
also at the first and second appellate stage with leave of Court
provided the amendment proposed is bona fide, relevant and
necessary for deciding the rights of parties involved in the lis. Thus,
the observations are applicable to the present matter.
29. In the case of Shivshankara (supra), the Hon’ble Apex Court
has observed in para-14 that it is settled that while dealing with the
prayers for amendment of the pleadings, the Court should not apply
hyper technical approach, but at the same time, the Court must keep
in mind that such amendment cannot be granted on a mere request
specifically at the appellate stage and when the judgment and decree
passed by the Court is in appeal. Only in exceptional circumstances
and when the amendment is necessary to adjudicate the dispute
effectively, could be allowed in rare circumstances.
30. The matter in hand would go to show that the petitioner/
defendant being illiterate and pardanashin lady was in fact unable to
understand the pleadings in the written statement and therefore, in
order to do justice effectively, the proposed amendment which is in
the nature of clarification, ought to have been considered by the
learned First Appellate Court. However, while taking hyper technical
aspect and without considering the status of the defendant, such
amendment was rejected.
31. To my mind, the impugned order suffers from improper
exercise of jurisdiction. No doubt, the proposed amendment/facts
were to the knowledge of the defendant when she filed the written
statement, that ground could have been considered qua the status of
the defendant being illiterate and pardanashin lady. At the most,
costs could have been imposed since the proposed amendment is not
in a mala fide manner and certainly it is not causing any prejudice to
the plaintiff.
32. Having said so, the petition needs to be allowed.
33. Accordingly, the petition is allowed. The impugned order
dated 13/02/2020 in Regular Civil Appeal No.2 of 2014 below
Exhibit-15 is quashed and set aside. The application filed by the
petitioner/defendant No.1 for amendment of the written statement
stands allowed, subject to payment of costs of Rs.5,000/- (Rs.Five
Thousand Only) to the plaintiff/respondent No.1.
34. Rule is made absolute in the above terms. No order as to
costs.
JUDGE
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