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Judgment
Rule. Rule is made returnable forthwith. Heard finally with the consent of the learned counsel for the parties.
The present petition challenges the order passed below Exhibit 115 by the Civil Judge, Senior Division, Saoner, in Special Civil Suit No. 43 of 2022. By way of the said order, the application filed by the petitioner for amending the plaint is rejected.
Facts as can be stated in the petition are as under:
The petitioners, who are the original plaintiffs, filed a suit for declaration, cancellation of sale deed and permanent injunction, bearing Special Civil Suit No. 854 of 2016, which was re-numbered as Special Civil Suit No. 43 of 2022 after its transfer to the Court of the Civil Judge, Senior Division, Saoner. In the said suit, the matter proceeded for trial and, on 10.01.2023, the evidence commenced. The plaintiffs, after examining themselves and their witnesses, closed their side by filing a pursis on 02.02.2026. The matter was thereafter adjourned for the defendants' evidence, and one of their witnesses was also partly examined. At this stage, the plaintiffs filed an application seeking permission to amend the plaint. The said application has been rejected by the trial Court. The said order is impugned in the present petition.
I have heard Mr. Rahul Dilip Dhande, learned counsel for the petitioners, Mr. Abhinav V. Muley, learned counsel for the Caveator/Respondent No. 2, and Mrs. M.S. Naik, learned AGP for the Respondent/State.
It is the submission of the learned counsel for the petitioner that the trial Court erred in rejecting the application for amendment only on the premise that it was filed after the commencement of the trial. He submits that the trial Court failed to appreciate that the counsel who used to represent the plaintiffs had undergone open-heart surgery and was not available for professional work from July 2025 to January 2026, i.e., for about 6 to 7 months. It is also his submission that the trial Court, while rejecting the amendment, failed to appreciate the settled principle of law that all amendments to the pleadings should normally be allowed which are necessary for determination of real question between the parties. In this regard, he places reliance on the judgment in the case of Revajeetu Builders And Developers Vs. Narayanaswamy And Sons And Others, reported in (2009) 10 SCC 84.
Per contra, Mr. Abhinav V. Muley, learned counsel for the Caveator/Respondent No. 2, supports the impugned order. He submits that, admittedly, the application for amendment was filed after commencement of trial and there is nothing on record in the application for amendment to show that, in spite of due diligence, the proposed amendment could not have been filed earlier. He, therefore, submits that the trial Court was correct in rejecting the application.
Rival contentions fall for my consideration.
As can be seen from the application at Exhibit 115 filed by the plaintiffs seeking amendment, there is no averment regarding the counsel for the plaintiffs having undergone heart surgery and being not available to represent them. Even though such papers have been filed by way of pursis, the learned counsel for the petitioner admits that all these documents were not before the Court while deciding the application.
Secondly, there is nothing in the application for amendment to show that, in spite of due diligence, the said application could not have been moved earlier. A bare perusal of the application and, more particularly, the proposed amendment would reveal that the same pertains to the litigation between the parties before the revenue authorities. As has been rightly observed by the trial Court, the plaintiff, i.e., petitioner, was a party to the said proceedings and was well aware of the said proceedings. There is nothing pleaded nor any material placed on the record to show why the said amendment could not be moved earlier. In my considered opinion, the trial Court has exercised the discretion, as curtailed by the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC"), correctly.
Reliance placed by the learned counsel for the petitioner on the judgment referred to supra is of no assistance to him, since, in the said matter, the controversy was entirely different. In the said matter, after the repeal of the Urban Land (Ceiling and Regulation) Act, 1976, the plaint was sought to be amended to bring the said facts on record. The amendment, even though initially allowed by the Court, was rejected by the High Court. The Hon'ble Supreme Court maintained the said order while dismissing the appeal. The other proposition of law as enunciated in the said judgment by the Hon'ble Apex Court cannot be disputed. However, the fact remains that the proviso to Order VI Rule 17 of the CPC curtails the discretion and, therefore, the trial Court, in my considered opinion, was right in rejecting the application by giving a reasoning that there is nothing to show due diligence and, therefore, the amendment cannot be allowed. No perversity can be found in the impugned order. The petition is meritless and is liable to be rejected.
The petition is accordingly rejected.
Rule is discharged.