Subhash Pande vs Gangadharprasad Pande

Subject-matter: Feeling aggrieved by the order dated 12.08.2024 passed by the Learned Civil Judge Senior Division Latur on an application below Exh.359 in Regular Civil Suit No.67 of 2012 (Old R.C.S. No.30 of 2006), the Plaintiffs are before this Court. Vide the impugned order, learned Judge of the Trial Court has declined to allow amendment in the property description.

Plaintiffs in a suit of 2006 who sought amendments in the pleadings, on earlier occasions never sought alteration in the area of suit property in any of the amendment application which they filed earlier. At the fag end of the trial when the matter is posted for hearing, an application is filed for reducing the area of suit property coupled with explanation about transaction of the suit property.

“Whether if the fact of ‘exact area of suit property’ and ‘description of property transaction’ were not in plaintiffs’ knowledge and control to mention earlier even after due diligence” is the issue under debate.

Rule. Rule made returnable forthwith. By consent of the parties I have heard them for final disposal considering the short issue and long pendency of the suit.

For the sake of convenience, the parties are referred by their factual status.

Facts in brief:

a. The petitioners/plaintiffs filed Regular Civil Suit No.30 of 2006 in the court of Learned Civil Judge Senior Division Latur with following substantive prayers:

b. Plaintiffs’ case is that the ‘suit-property’ is a part of their joint family property. That, there was already a family arrangement and hence they deserve possession as per the family arrangement.

Plaintiffs also sought invalidation of the sale deeds executed by defendant no.1 and a declaration that those are not binding on them.

c. The contesting respondents are bonafide purchasers. They denied that the ‘suit-properties’ are coparcenary properties of the plaintiffs. Description of ‘suit-property’ was denied. It was denied that the plaintiffs were entitled for any partition and that the suit was within limitation. The suit was not good on account of misjoinder of cause of action and non joinder of necessary parties in view of the averments in the plaint and the alternate prayer in the suit.

d. Issues were framed on the basis of the rival pleadings. Plaintiffs amended the plaint. Issues were re-casted. Subsequently, additional issues were framed. Plaintiffs offered their examination-in-chief. They were cross examined by the defendants wherein the defendants gathered admissions corresponding to the defense raised in the Written Statement. The suit reached to hearing stage. 18 years after filing of the suit, an application at exh.359 came to be filed by the Plaintiffs to amend the plaint by adding some property transactions and by modifying the area of suit property.

e. Defendants resisted the application and pointed out that the application was not in accordance with the proviso to the Order VI Rule 17 of the Civil Procedure Code 1908, and the amendment – if allowed would seriously prejudice defendants’ case.

f. Vide the impugned order dated 12.08.2024, the Trial Court pleased to reject the proposed amendment vide a reasoned order. Hence this Writ Petition.

Submissions:

a. Mr. S. V. Natu, learned advocate for the Petitioners/plaintiffs submits that the proposed amendment is permissible within the meaning of Order VI Rule 17 of the Civil Procedure Code 1908.

b. He would submit that the Trial Court ought to have appreciated that the proposed amendment does not hamper main controversy nor causes any prejudice to the defendants.

c. He would submit that the proposed amendment is merely of clarificatory nature and won’t travel beyond the evidence that is already on record. With this, it is argued to allow the Writ Petition.

d. Per contra, Senior Advocate Mr. P. R. Katneshwarkar, i/b Mr. Ravi Adgaonkar, learned advocate for contesting respondents would strongly oppose the Writ Petition. He would submit that in no case the petition is covered by Order VI Rule 17 of the Code.

e. It is submitted that the amendment is sought to overcome the admissions given in the cross examination, and the same is afterthought.

f. Mr. Katneshwarkar concludes his objection by submitting that the Plaintiffs have not come with clean hands. That, it is not a case that even after due diligence, the plaintiffs could not sought the proposed amendment at earlier time. That, by way of the proposed amendment the plaintiffs were to cure the fatal defects of this plaint and the evidence.

Thus, on all counts it is argued that the Writ Petition is liable to be dismissed.

Consideration: I have heard the respective sides at length. Perused the pleadings and its annexures. On that basis now I discuss merit of the case as under.

a. True that the courts would be sloth in declining amendments which are of petty, of technical nature, those which do not affect the fundamental controversy among the parties; however when the suit is at the stage of hearing and amendment is sought, the Courts are under strict obligation to scan the proposed amendment cautiously.

b. Order VI Rule 17 of the Civil Procedure Code 1908 provides for amendment or alteration in the pleadings. It reads thus:

c. In view of above and the rival submissions, I proceed to test merit of Mr. Natu’s case on the ‘doctrine of due diligence’ and ‘prejudice to the contesting defendants’.

d. By virtue of the proposed amendment, the plaintiffs tried to adduce explanation to the property transaction among the family members and also sought to correct the ‘suit-property’ description.

e. The record speaks that even prior to the present application, the plaintiffs have got the plaint amended several times. The portion sought to be adduced in the plaint was very well within knowledge of the plaintiffs. Unlike argued by Mr. Natu- learned advocate for the petitioners, description of the property transaction and the modification area of the ‘suit-property’ are not merely clarificatory, if seen keenly. It goes to the root of controversy.

f. It is not the case that the plaintiffs learnt something new and which could not be brought on record even applying due diligence, or even by due diligence it was not within his knowledge. I do comprehend with the findings recorded by the Trial Court at Paragraph No.7.

g. Corresponding to the rival pleadings, the issues were framed by the Trial Court. Even subsequently, in view of amendment in the plaint, issues were re-casted. Then additional issues were also framed in the light of the order dated 14.02.2022 passed by this Court in Writ Petition No.3021 of 2017.

h. The plaintiffs adduced their evidence by chief examination. They were cross examined and offered vital admissions during the cross examination. Thereafter the plaintiffs closed their evidence. The suit reached to the stage of hearing.

Senior advocate Mr. P. R. Katneshwarkar for contesting respondents rightly pointed out the vital admissions by the plaintiffs in his cross examination which read as follows:

j. This court, while passing order on 14.02.2022 in Writ Petition no.3021 of 2017, observed at paragraph No. 4 to 6 thus:

k. Reading my findings conjointly with the portion of plaintiffs’ cross examination and the findings recorded by this Court in earlier Writ Petition, it is apparent that to overcome the admissions in the cross examination and to dilute the findings recorded by this Court the proposed amendment is sought. It is settled principle of law that what can not be done directly, also can not be done indirectly.

l. To overcome the issue of delay in the proposed amendment, Mr. Natu places reliance on a judgment rendered by this Court in a case reported at 2018 DGLS (Bom.) 1116 [Vitthal Mandhre Vs. Mugutrao died per LRs]. In the said case, the amendment in the two boundaries was merely explanatory in character and did not refer to any statement or admission given in the cross examination by the plaintiff. Apparently, same is not the case herein. Unlike it is conveniently submitted that the amendment is merely clarificatory in nature, the plaintiffs have cautiously sought the amendment after their evidence is closed. The amendment is not so simple in character to be allowed at this stage. Hence with due respect, I record that the facts of the cited case and the case in hand are distinguished from each others.

m. Mr. Natu then relies upon a judgment rendered by this court in a case reported at 2021 SCC Online Bom 1593 [Anil Bilawar Vs. Anita Kadam]. In the cited case, this court, while adverting on the doctrine of due diligence, at paragraph No.13 observed thus:

n. From the facts of the case in hand, it is again clear that the proposed amendment do not meet the parameters as prescribed in the paragraph No.13 of the cited case. The facts of present case are extremely adverse to the prayers in application below Exh.359 (amendment application).

o. On the other hand, the Writ Petition needs to be decided on the parameters laid down by the Honorable Supreme court in the case of LIC Vs. Sanjeev Builders reported at (2022) 16 SCC 1. Their Lordships at paragraph nos. 71.4 have observed thus:

p. Mr. Katneshwarkar, Senior Advocate strongly places reliance on LIC case (supra), and submits that the Trial Court and this Court is bound by those principles. I respectfully subscribe to the principles laid down by the Honorable Supreme Court in the cited case (supra).

q. The same principles have been elaborated by the Honorable Supreme court in subsequent judgments reported at 2024 SCC Online SC 2615 (Dinesh Goyal @ Pappu Vs. Suman Agrawal) [emph. Para 11.2];

r. To sum up, following are the substantial hurdles in way of the relief that is sought by the Petitioner:

Plaintiffs are the dominus litis. What they pray and on what facts, is well within the knowledge of the Plaintiffs. That is why the plaint is verified and then the same is proceeded.

The plaintiffs herein have unfolded their claim narrating the sequence of events starting with the family arrangement and till the cause of action. The prayer is dual in character.

Contesting defendants are the subsequent purchasers who have come with a theory of bonafide and lawful purchasers.

Although it is stated that the amendment is sought only for correcting the area of suit property in the property description clause and for explanation of property transaction, the correction is sought 18 years after institution of the initial suit, and while the suit reached to the stage of hearing.

Contents of the application Exh.359 itself show that the proposed amendment is neither of petty or technical nature nor is safe to interfere into the core controversy.

Nothing is placed on record to show that even after due diligence within the permissible period the plaintiffs were unable to seek such amendment, and that therefore the Trial Court could exercise exceptional jurisdiction u/o VI Rule 17 of the Civil Procedure Code 1908. On the contrary, at several occasions the plaintiffs have already got their plaint amended. What prevented the plaintiffs from seeking present amendment covered in those applications, is not at all explained. It is also not a case that something new has been discovered by the plaintiffs, and it is necessitated for amending the plaint.

The facts are otherwise. The petitioners tendered their evidence on the basis of the pleadings in the exhibit-1 i.e. the plaint. Obviously it includes the property description too, on which basis the prayers are averred. The defendants cross examined the plaintiffs on each substantive aspect of the examination in chief. Various vital admissions are given in the cross examination as regards the transactions of the properties.

The defendants have derived such answers and explanation in the cross examination of the plaintiffs, which goes to the defense raised corresponding to the plaint pleadings.

Moreso, the observations by this Court in the Writ Petition No.3021 of 2017 at paragraph no.6 would prevail over the demand u/o VI Rule 17 of the Civil Procedure Code, 1908 as is prayed by the plaintiffs.

This Court is bound by the law laid down by the Honorable Supreme court in the case of LIC Vs. Sanjeev (supra). Testing Plaintiffs’ application at Exh.359 in the light of Honorable Supreme Court’s ruling, apparently the Trial Court has rightly passed the impugned order.

In view of above, I do not subscribe to Mr. Natu’s arguments that the proposed amendment does not affect the controversy in the suit. As rightly pointed out by Senior Advocate Mr. P. R. Katneshwarkar, the proposed amendment goes to the root of the controversy and causes prejudice to the other side. Hence, the Petition fails to pass the condition of ‘due diligence’ and ‘no prejudice to the other side’.

Hence, I am disposed to think that in the obtaining situation of facts this is not a case to allow the proposed amendment. Trial Court’s view deserves to be upheld.

On the contrary, the application below Exh.359 is nothing but an abuse of process for the reasons recorded that requires to dismiss the Writ Petition with exemplary cost.

s. Hence, I pass following order:

. After pronouncement of the judgment and order in the open Court, Mr. S. V. Natu, learned Advocate for the petitioners would request to continue the interim protection granted by this Court for a further period of six weeks.

Mr. Ravi Adgaonkar, learned Advocate for respondent nos.3, 4A, 4B, 5 to 7, 9, 11 and 12 would object for continuation of the interim protection.

However, considering that the interim protection was running in the matter since 2024, interim relief granted earlier to continue for further period of six weeks from today.