The issue that arises for consideration is
whether the Plaintiffs are entitled to be permitted to amend the plaint so
as to give better particulars of the suit premises involved in each of the
suits. In the said context, it is required to be noted that it is not the case of
the Defendants that they are not the tenants of the Plaintiff Trust. The
stand taken by the Defendants in each of the suits is that the description of
the suit premises is incomplete and also skeletal and from the said
description it is not possible to identify the suit premises. Hence, one fact
that is required to be borne in mind is that the Defendants do not dispute
that they are the tenants of the Plaintiffs Trust. They also do not outright
reject the description of the suit property as given in the plaint in each of
the suits. Their stand is that the said description is incomplete and also
skeletal and from the said description, it is not possible to identify the suit
property. In my view, it is in the said context that the application was
required to be considered. It is also required to be noted that though the
objection was raised in the written statement in the year 2005, it is in the
year 2010 that the Defendants put questions to the witness of the Plaintiffs
revolving around the description of the property. It is at the said stage,
therefore, the Plaintiffs realized that if the description as given in the
plaint is continued, may be it would result in a technical difficulty for the
Plaintiff in prosecution of the suit and in the event the suit is decreed, for
execution of the decree.
In so far as proviso to Order 6 Rule 17 of the CPC is
concerned, no doubt the said proviso postulates that the applicant seeking
an amendment has to satisfy the due diligence test before he can be
permitted to amend the pleadings. In the instant case, it is not as if that
there is no description of the suit property or that the description is so
defective that an objection is raised on the said ground. The objection
taken to the description is on the ground that same is incomplete and
skeletal and from the said description, it is not possible to identify the suit
premises. Hence, it is not a case where the original description given in
the plaint is sought to be taken away and replaced by a totally new
description, but what is sought to be done is by maintaining the original
description in the plaint, addition is sought to be made so as to give more
clarity to the description. As indicated above, the alarm bells were rung
when the Defendants in each of the suits put questions to the Plaintiffs'
witness in the crossexamination revolving around the description of the
suit property. It is also required to be noted that the suit is not at the stage
where the situation is irreversible. As indicated above, only the evidence of
the first witness of the Plaintiffs is complete and the suit was at the stage
where the evidence of the second witness was to begun. At this stage, it
would be gainful to refer to the judgment of the Apex Court in Sajjan
Kumar's case (supra). In the said case, the Apex Court was concerned with
almost identical facts as in the instant case. In the said case also, though
an objection was raised to the description of the suit property as given in
the written statement, the amendment to the description was moved long
thereafter. The Apex Court held that though there was a delay in moving
the amendment, the proposed amendment was necessary for the purpose
of bringing to the fore the real question in controversy between the parties
and the refusal to permit the amendment would create needless
complications at the stage of execution in the event of the Plaintiff
succeeding in the suit. In my view the aforesaid judgment in Sajjan
Kumar's case (supra) applies on all fours to the case of the Plaintiff in the
instant suits, as to avoid future complications and proceedings, it would be
appropriate to allow the Plaintiff to amend the plaint at this stage.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2960 OF 2013
Khasagi (Private) Devi Ahilyabai Holkar
Charitable Trust,
V
Shri Audumbar Gangadhar Nikate
CORAM : R.M. SAVANT, J.
DATE : 2nd DECEMBER, 2015
Citation;2016(2) MHLJ 94 Bom,2016(2) ALLMR511
Print Page
whether the Plaintiffs are entitled to be permitted to amend the plaint so
as to give better particulars of the suit premises involved in each of the
suits. In the said context, it is required to be noted that it is not the case of
the Defendants that they are not the tenants of the Plaintiff Trust. The
stand taken by the Defendants in each of the suits is that the description of
the suit premises is incomplete and also skeletal and from the said
description it is not possible to identify the suit premises. Hence, one fact
that is required to be borne in mind is that the Defendants do not dispute
that they are the tenants of the Plaintiffs Trust. They also do not outright
reject the description of the suit property as given in the plaint in each of
the suits. Their stand is that the said description is incomplete and also
skeletal and from the said description, it is not possible to identify the suit
property. In my view, it is in the said context that the application was
required to be considered. It is also required to be noted that though the
objection was raised in the written statement in the year 2005, it is in the
year 2010 that the Defendants put questions to the witness of the Plaintiffs
revolving around the description of the property. It is at the said stage,
therefore, the Plaintiffs realized that if the description as given in the
plaint is continued, may be it would result in a technical difficulty for the
Plaintiff in prosecution of the suit and in the event the suit is decreed, for
execution of the decree.
In so far as proviso to Order 6 Rule 17 of the CPC is
concerned, no doubt the said proviso postulates that the applicant seeking
an amendment has to satisfy the due diligence test before he can be
permitted to amend the pleadings. In the instant case, it is not as if that
there is no description of the suit property or that the description is so
defective that an objection is raised on the said ground. The objection
taken to the description is on the ground that same is incomplete and
skeletal and from the said description, it is not possible to identify the suit
premises. Hence, it is not a case where the original description given in
the plaint is sought to be taken away and replaced by a totally new
description, but what is sought to be done is by maintaining the original
description in the plaint, addition is sought to be made so as to give more
clarity to the description. As indicated above, the alarm bells were rung
when the Defendants in each of the suits put questions to the Plaintiffs'
witness in the crossexamination revolving around the description of the
suit property. It is also required to be noted that the suit is not at the stage
where the situation is irreversible. As indicated above, only the evidence of
the first witness of the Plaintiffs is complete and the suit was at the stage
where the evidence of the second witness was to begun. At this stage, it
would be gainful to refer to the judgment of the Apex Court in Sajjan
Kumar's case (supra). In the said case, the Apex Court was concerned with
almost identical facts as in the instant case. In the said case also, though
an objection was raised to the description of the suit property as given in
the written statement, the amendment to the description was moved long
thereafter. The Apex Court held that though there was a delay in moving
the amendment, the proposed amendment was necessary for the purpose
of bringing to the fore the real question in controversy between the parties
and the refusal to permit the amendment would create needless
complications at the stage of execution in the event of the Plaintiff
succeeding in the suit. In my view the aforesaid judgment in Sajjan
Kumar's case (supra) applies on all fours to the case of the Plaintiff in the
instant suits, as to avoid future complications and proceedings, it would be
appropriate to allow the Plaintiff to amend the plaint at this stage.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2960 OF 2013
Khasagi (Private) Devi Ahilyabai Holkar
Charitable Trust,
V
Shri Audumbar Gangadhar Nikate
CORAM : R.M. SAVANT, J.
DATE : 2nd DECEMBER, 2015
Citation;2016(2) MHLJ 94 Bom,2016(2) ALLMR511
