Navnath Tagad vs Anuradha @ Monika Navnath Tagad & Ors.

1 Rule. Rule is made returnable forthwith.

2 The petition is taken up for final disposal with the consent of the parties.

The petitioner is the respondent in Special Civil Suit No. 56/2017, filed by the respondent No.1 against the present petitioner and other respondents for declaration, partition, possession and perpetual injunction. The suit is filed for undivided share in the ancestral joint Hindu Family properties in the capacity of coparcener. The cause of respondent No.1 herein for filing the suit was that, one Pandurang Bandu Tagad, the father of the petitioner was the Karta of the joint family. Respondent No.2 is the wife of the petitioner while respondent Nos. 3 and 4 are the children of respondent No.2. The petitioner has filed the written statement in the suit. When the matter was at the stage of evidence, an application is filed by the petitioner for amendment of written statement under Order VI Rule 17 of the Code of Civil Procedure, 1908 below Exhibit 177 on 07.02.2025.

It is contended in the application that, although written statement was filed by the petitioner long back, during the pendency of the proceedings before the learned Civil Judge, Senior Division, Ahmednagar, suddenly the petitioner got knowledge of a document i.e. relinquishment deed executed by mother of the plaintiff Shobha Navnath Tagad which is a notarized document. The petitioner discovered the original relinquishment deed wherein mother of respondent No. 1 has executed relinquishment deed giving up all her rights in the property voluntarily in lieu of payment of the maintenance amount of Rs. 2,25,000/- in cash. This amount is received in Hindu Marriage Petition No. 262/2005, from the petitioner. She has also undertaken to take care and maintain respondent No.1. Since the document was suddenly discovered by the petitioner, the petitioner has filed an application seeking amendment in the written statement in the Special Civil Suit, filed by respondent No.1. It was claimed that, said amendment is necessary for effective adjudication of the lis between the parties. It was opposed by respondent No.1 by filing say at Exhibit 177.

The learned Civil Judge, Senior Division, Ahmednagar vide order passed below Exh. 173, has rejected the application by order dated 28.03.2025.

Mr. Shermale, learned Advocate for the petitioner submits that although the trial has commenced and the matter is pending for evidence of the defendant, the law governing amendment of pleadings, so far as the written statement is concerned is liberal as compared to the amendment in the plaint. According to him, the production of the relinquishment deed and necessary pleadings in the written statement is necessary for the effective adjudication of the dispute between the contesting parties. The suit is filed by respondent No.1, for her right in the existing properties, which was already relinquished by way of relinquishment deed, executed by her mother. The mother of respondent No.1 had already waived her right in the properties.

It is submitted that 1/5^th share is claimed in all the properties at Gut no.422 at Shendi from the petitioner who is father of the respondent No.1 as stated in the claim of the suit. It is submitted that, since the document was not in possession of the petitioner, he could not make necessary averment in the written statement. However, accidentally upon coming across the document he could lay his hand on the said document, which directly affects the rights of the parties to the suit, therefore the said document along with the necessary pleadings are necessary to be included in the suit. A separate application has been filed for bringing the said document on record vide application Exh. (175). He further submits that, although the document i.e. relinquishment deed is allowed to be brought on record subject to payment of cost, vide order dated 28.03.2025, at Exh.173, on the very day the application for making necessary averments regarding the contents of the relinquishment deed has been rejected by passing an order below Exhibit 176.

It is submitted that, the application seeking liberty to make necessary amendment regarding the relinquishment deed allowed to be brought on record, by incorporating averments in the written statement, has been rejected, on the ground that the petitioner has failed to show due diligence. It is submitted that the petitioner has categorically stated that, he was in receipt of the documents recently and hence he could not bring it on record, which is totally disregarded by the learned Judge.

Reliance is placed on the judgment of the Hon’ble Supreme Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and anr, Civil Appeal No. 5909 of 2022, decided on 01.09.2022 and the observations made by the Hon'ble Supreme Court, on maintainability of application for Amendment of pleadings. After taking into consideration all the landmark decisions governing the field, the Hon’ble Supreme Court has taken a view that, all the amendment that are necessary for determining the real question in controversy, provided it does not cause injustice or prejudice to the other side are to be allowed. The prayer for amendment is to be allowed if the amendment is necessary for the effective and proper adjudication of the controversy between the parties if it does not cause injustice to the other side.

He has further, drawn attention of this Court to the observations about delay in applying for necessary amendment. It is submitted that, the Hon'ble Supreme Court has held that, just because the application for amendment is made after prolonged delay it cannot be a ground to disallow the application. The Court should not reject the prayer for amendment, by adopting a hyper-technical approach, by invoking inherent powers.

It is therefore, submitted that, the application for amendment deserves to be allowed by setting aside the order passed by the learned Civil Judge, Senior Division, Ahmednagar dated 28.03.2025.

Per contra, Mr. V. P. Latange, learned Advocate for respondent No.1 submits that Order VI Rule 17 provides that, when the trial has already commenced, it is necessary for the parties making an application for amendment to demonstrate that, in spite of due diligence, he could not make the necessary averments in the written statement. Thus, in the present case, there is no averment made by the petitioner to the effect that, in spite of due diligence the petitioner could not incorporate necessary pleadings in the written statement, nor has he placed on record the relinquishment deed.

It is further submitted that the application filed by the petitioner lacks in details, as to from whose custody the document is produced by the petitioner at such a belated stage ; and the reason for delay in producing the document. Referring to Section 17(1)(b) under the Registration Act, which requires relinquishment deed to be registered, he would submit that, the relinquishment deed is a notarized document, hence it is inadmissible in evidence. According to him, the relinquishment deed has been executed in the year 2008, whereas the written statement has been filed in the year 2017. Therefore, the relinquishment deed that is sought to be produced by the petitioner ought to have referred it in his written statement. It is only with an intention to prolong the litigation between the parties, the application for amendment of written statement has been filed by the petitioner.

The learned Advocate relies on the observations made by the Hon'ble Supreme Court in the case of Vidyabai and others Vs. Padmalatha and another reported in 2008 DGLS (SC) 1646 which is a landmark decision as far as Order VI, Rule 17 of the CPC is concerned. Relying on Para 14 of the said judgment, wherein it is observed that it is the primal duty of the Court to decide, whether such amendment is necessary to decide the real dispute between the parties, only upon satisfaction of this condition, the amendment is to be allowed. The powers of the Court are restricted by the Proviso to Order VI Rule 17, therefore unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.

Thus, according to him, although the order has been passed permitting the relinquishment deed to be produced on record, it has no context with the rejection of the application at Exh.172. Both the orders are independent and not connected with each other. Both the orders are independent and not interdependent. He, therefore, prays that the application of the petitioner deserves to be dismissed.

I have heard the respective parties and perused the papers placed on record with their assistance. The father of the petitioner is the original Karta of the family, the suit properties were owned by him. Respondent No.1 has filed Special Civil Suit No. 56/2017, before the Court of Civil Judge, Senior Division, Ahmednagar for partition and 1/5^th share in all the properties. The present petitioner has filed written statement to the suit on 04.07.2017. During the pendency of the suit, while the suit was at the stage of evidence, an application seeking amendment of the written statement is filed by the petitioner. The petitioner has sought permission to make an amendment in written statement, by incorporating averments regarding the relinquishment deed dated 09.01.2008, executed by Shobha Tagad i.e. mother of respondent No.1 for herself and on behalf of her minor ward. It is submitted that, mother of plaintiff, by accepting the additional amount of Rs. 2,25,000/- from the petitioner has relinquished her own interest and interest of the daughter in the suit properties.

It is further submitted by the learned Advocate for the petitioner that, the relinquishment deed was not in his possession, hence when he accidentally came in possession of the relinquishment deed, he has filed an application for amendment of written statement along with the application for production of the said document. Considering that the suit itself is filed for partition and possession of the joint family property, which also includes the properties that are subject matter of the relinquishment deed, hence it directly affects the rights of the parties and also affects the adjudication of the suit. Order VI Rule 17 of the CPC governs the amendment of pleadings, which reads thus :-

Since the subject matter of dispute are the properties that have been relinquished, the amendment is necessary in determining the real issue and controversy.

It is not in dispute that such application can be filed at any stage of the proceedings, which allows either party to alter or amend his pleadings, in such manner and on such terms as may be just and necessary for the purpose of determining the real questions in controversy between the parties. Thus, it is the right of the parties to the suit to file an application seeking amendment at any stage of the proceedings, if it affects the real question involved in the suit. Since the trial has already commenced, proviso to Order VI Rule 17 of the Code of Civil Procedure is also attracted, which requires the applicant to demonstrate that in spite of the due diligence the applicant could not raise the issue before the commencement of trial.

From the perusal of the written statement filed by the petitioner, it is evident that, there is an averment, that in Special Civil Suit No. 12 of 2008, the mother of respondent No.1 has relinquished all her rights in the property of the petitioner in lieu of Rs. 4,00,000/- against future maintenance, does not refer to relinquishment deed. But fact remains that, the fact of the relinquishment deed is pleaded in the written statement. On this background the application is moved for production of relinquishment deed when the original deed was discovered by the petitioner. It is stated that, suddenly petitioner has found the said document to which the petitioner and mother of respondent No.1 were parties. Since the relinquishment deed directly affects the rights of the respective parties in the suit, it was found necessary to place it on record. Hence the application for production of relinquishment deed came to be filed.

Although the application Exh. 175 seeking production of the relinquishment deed has been allowed by the learned Civil Judge, Senior Division, by observing that although the document sought to be produced is at a belated stage and the reason for delay is not satisfactory and convincing, Yet, the Court of the learned Civil Judge, Senior Division, being a fact finding court, found it necessary to give every opportunity to the defendant to produce, necessary evidence possessed by him in support of his case. Therefore, permission has been granted to the petitioner to produce the document subject to payment of cost of Rs. 5000/- vide order dated 28.03.2025.

Surprisingly, on the very day the application seeking amendment in the written statement has been rejected by the learned Judge, holding that the petitioner has failed to demonstrate that, in spite of due diligence, he could not file on record the reqlinquishment deed. It is observed that, even though at the time of preparation of written statement, irrespective of the fact that the relinquishment deed dated 09.01.2008 and was not in his possession, the defendant could have mentioned this fact while preparing the written statement, which he has failed to do. It is held that the petitioner also failed to show due diligence, thus the petitioner has failed to demonstrate that in spite of the due diligence, he could not produce the document. There is no satisfactory reason for not producing the document. Without satisfactory explanation that too when half of the trial is over. Such application cannot be allowed.

Bare perusal of the Order VI Rule 17 of the CPC, as well as reported judgment placed on record by the respective parties, clearly lays down that the amendment to the pleadings in the plaint as well as written statement can be permitted at any stage to the proceedings. As regard written statement, the Courts are liberal while granting relief of amendment in pleadings. On satisfaction of the court that in spite of due diligence, the party could not addressed the issue before the commencement of trial. The petitioner, in the application, has clearly stated that suddenly he came in possession of the said document, which was not in his possession. Therefore he has filed the application which is necessary for the effective adjudication of the dispute.

The application for production of the relinquishment deed is allowed by the same Judge on the same day, yet the application for the amendment of the written statement has been rejected.

While allowing the production of the relinquishment deed, the learned Judge has taken a view that it is necessary to give the opportunity to the defendants to produce whatever evidence they are having in support of their case. The fact remains that if such document is allowed, but it is not supported by the pleadings in the written statement it is of no consequences. In case of Vidyatai vs. Padamlatha (supra), the Hon'ble Apex Court in the concluding part of the Judgment, has observed that whether the documents should have been called for or not by the Court without there being the amended written statement before it may be considered afresh.

The observations made by the Hon'ble Supreme Court in the case of Life Insurance Corporation of India Vs. Sanjeev (supra), also needs to be considered at this juncture, while deciding the present petition. The Hon'ble Supreme Court after appreciating all the landmark decision on the issue of amendment of pleadings, has laid down certain guiding principles for deciding application for amendment. In para 17 of the said judgment, it is observed that, all amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side.

In the present case, the suit is at the stage of evidence. It is therefore necessary to allow application for amendment of pleadings in written statement. It is appropriate to allow necessary pleadings to be incorporated in the written statement. Since it is necessary for effective adjudication of the dispute between the parties.

Mere amendment in the averments in written statement will not cause any prejudice to respondent no.1, since he is at liberty to rebut the evidence produced by the petitioner and cross-examine the witnesses produced if the petitioner while proving the said document. The relinquishment deed which is allowed, to be taken on record, will have to be proved by the petitioner by adducing necessary evidence which can always be rebutted by respondent No.1. Therefore in my view no prejudice will be caused to respondent No.1. The necessary pleadings will have made to be made in the written statement of the petitioner in support of production of relinquishment deed. As such, order passed below Exhibit 173 is quashed and set aside.

Rule is made absolute in terms of prayer clause 'C' and 'D'.