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Judgment
A.P. Lavande, J.—Both these petitions are disposed of by common judgment since challenge in both these petitions is to the order dated 19th September, 2009 passed by the learned Civil Judge, Senior Division, Ponda in Regular Civil Suit No. 310/2000/A (New).
Heard learned Counsel for the parties. Rule. By consent of the learned Counsel for the parties heard forthwith.
By these petitions under Article 227 of the Constitution of India, the Petitioners in both the petitions challenge the order dated 19th September, 2009 passed by the learned Civil Judge, Senior Division, Ponda in Regular Civil Suit No. 310/2000/A (New) by which the application filed under Order 14, Rule 5 read with Section 151 of CPC on behalf of Defendant Nos. 1, 2, 4 and 5 seeking framing of additional four issues has been allowed.
Perusal of the record discloses that Defendant Nos. 1, 2, 4 and 5 had earlier filed an application exhibit 36-D in April, 2008 seeking amendment of the written statement, inter alia, taking the plea of tenancy in respect of paddy field portion of the suit land. The said application was dismissed by order dated 6th August, 2008. Thereafter, the Plaintiffs filed an application seeking clarificatory amendment, which was allowed by the trial Court. Pursuant to the said amendment, additional written statement was filed by Defendant Nos. 1, 2, 4 and 5 in which several additional contentions were raised. On the basis of the additional written statement, Defendant Nos. 1, 2, 4 and 5 filed an application dated 10th September, 2009 for framing the following additional issues:
(a) Whether Defendant Nos. 1, 2, 4 and 5 prove that the trial Court has no jurisdiction to grant the prayers for partition of the suit property.
(b) Whether Defendant Nos. 1, 2, 4 and 5 prove that they are owners in cultivation of the respective share and tenants in respect of remaining suit property which includes paddy fields.
(c) Whether Plaintiffs proves that Balchandra Suryaji Shenvi Borkar or Balkrishna Suriaji Shenvi Borkar or Ramkrishna Suriaji Sinai and Sridora Panduranga Sinai have 1/3rd right.
(d) Whether Plaintiffs proves that the Plaintiff Nos. 1-8, along with Sridora Panduranga Sinai have 1/3rd share in suit property.
The application was opposed on behalf of the Plaintiffs. By the impugned order dated 19th September, 2009, the trial Court allowed the application on the ground that since in the additional written statement, the said Defendants had made statements giving rise to the additional issues, it was necessary to frame the said issues. Consequently, the trial Court allowed the application.
Mr. Ramani, learned Counsel on behalf of the Petitioners in Writ Petition No. 824/2010, contended that in view of the earlier order dated 6th August, 2008 disallowing the application for amendment and in view of the fact that the amendment sought by the Plaintiffs was only by way of clarification, the trial Court ought not to have framed the additional issues in terms of the impugned order. According to learned Counsel, the statements made in the additional written statement in reply to the amendment of the plaint, were beyond the scope of the amendment permitted by the trial Court and, therefore, the trial Court ought not to have framed the additional issues on the basis of the pleadings in additional written statement. In support of his submissions, reliance has been placed on the judgment of the Apex Court in the case of Gurdial Singh and Others Vs. Raj Kumar Aneja and Others, .
Mr. Bhobe, learned Counsel appearing for the Petitioners in Writ Petition No. 178/2010 adopted the submissions made by Mr. Ramani, learned Counsel on behalf of the Petitioners in Writ Petition No. 824/2010.
Mr. Lawande, learned Counsel on behalf of Respondent Nos. 1 to 4 in Writ Petition No. 824/2010 submitted that no fault can be found with the impugned order and that the trial Court was justified in framing the additional issues on the basis of the additional pleadings in the additional written statement. Learned Counsel further submitted that the said issues arise on the basis of the pleadings and, therefore, interference is warranted with the impugned order.
Perusal of the impugned order discloses that the learned trial Court has not even referred to the earlier order dated 6th August, 2008, which was passed disallowing the application for amendment. Moreover, in case of Gurdial Singh (supra), the Apex Court has held that if amendment is allowed in a suit, in reply to the said amendment, new plea cannot be permitted to be raised in the garb of consequential amendment although it can be pleaded by way of independent or primary amendment. Indisputably, before the trial Judge the judgment of the Apex Court in the case of Gurdial Singh (supra) was not cited and as such, the trial Court had no occasion to consider the same.
In view of the above position and without going into merits of the rival claims, I deem it appropriate to set aside the impugned order and remand the matter to the trial Court to pass a fresh order after giving opportunity of being heard to both sides and after considering the legal position as laid down in the Gurdial Singh (supra) and the other judgments that may be cited by the rival parties.
In view of the above, Rule is made partly absolute in aforesaid terms in both the cases with no order as to costs. Interim relief granted, stands vacated. Parties shall appear before the trial Court on 28th April, 2011 at 10.00 a.m.