Vikas Mahendrasingh Saini vs Dwarkanath Sansthan & Ors.

RULE. Rule is made returnable forthwith and heard finally with consent of the learned counsel for the parties.

The petitioner takes exception to the order dated 16.09.2021 passed by the trial Court rejecting the application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short, ‘the Code’).

The petitioner is the original plaintiff, who had filed a suit for declaration, permanent injunction and cancellation of the sale-deed and in alternative for a decree of possession. The defendants appeared in the suit and filed their written statement on 03.10.2012 and issues were settled by the trial Court on 23.01.2014. On 18.08.2016, the plaintiff filed his evidence on affidavit and adduced evidence during which the sale-deed dated 12.10.1988 was exhibited alongwith other documents. The plaintiff attempted to get document of ‘Correction Deed’ exhibited, however for want of pleadings in the plaint, the trial Court refused to exhibit the said document. The rejection of the plaintiff’s application for exhibiting the document of ‘Correction Deed’ was subjected to challenge vide Writ Petition No.1559 of 2017 before this Court which was dismissed by order dated 02.04.2019 on account of absence of pleadings in plaint about ‘Correction Deed’. In this background, the plaintiff filed an application at Exhibit 74 for amendment of plaint to incorporate pleadings with respect to the ‘Correction Deed’ dated 04.01.1991. The plaintiff primarily stated in the amendment application that the ‘Correction Deed’ was filed on record alongwith the list of documents at Exhibit 4 and thus the parties were having knowledge about the said document and even in absence of pleadings, there was no element of surprise for the defendants. The defendants opposed the application for amendment by filing affidavits and categorically denied that the document of ‘Correction Deed’ was earlier filed on record. By order dated 16.09.2021, the trial Court rejected the application and the petitioner has challenged the said order by way of instant petition.

Shri C.S. Kaptan, learned Senior Advocate for the petitioner submitted that the document of ‘Correction Deed’ with respect to the suit property is a vital document for deciding the controversy with respect to cancellation of the sale-deed and in view of averments in the plaint, he submitted that the defendants were already aware about the said document. He submitted that in view of the controversy involved, in absence of pleadings with respect to the ‘Correction Deed’, the plaintiff would be deprived from bringing on record the entire evidence necessary for complete adjudication of the controversy involved in the suit. He submitted that the document of ‘Correction Deed’ was filed on record alongwith the plaint vide list of documents at Exhibit 4 and again vide another list of documents dated 01.09.2014 at Exhibit 41. He thus submitted that the defendants would not be put to any prejudice if the amendment application is allowed even after commencement of the trial.

Per contra, Shri A.J. Gilda, learned counsel for the respondent nos.2 to 6 vehemently opposed the petition. He submitted that the application for amendment filed by the plaintiff after commencement of trial without demonstrating any due diligence on the part of the plaintiff deserved to be rejected. In support of his submissions, he relied on the judgment of the Co-ordinate Bench of this Court in Roque Pereira & Another Versus Janu Kankolkar & Others [2016 SCC OnLine Bom 5598], Vikas Prem Somkuwar Versus Kailas Panjabrao Dunedar & Another [2019(2) Mh.L.J. 451] and Walchandnagar Industries Ltd. Mumbai Versus Indraprastha Developers, Pune & Others [2015(3) Mh.L.J. 786] and submitted that the proposed amendment attempting to withdraw an admission in the pleadings could not be permitted. Highlighting the position of law on the aspect of due diligence as clarified in Walchandnagar Industries Ltd. Mumbai (supra), he submitted that the plaintiff failed to display any due diligence on its part and thus supported the impugned order.

Shri Madhur Deo, learned counsel for the respondent no.7 submitted that the basic contention of the plaintiff that the ‘Correction Deed’ was filed alongwith the list of documents at Exhibit 4 is an incorrect submission and pointed out that by their reply to the amendment application before the trial Court the defendants have categorically denied the said contention. As such, he submitted that the very foundation of the contentions of the petitioner for filing amendment application are without any basis.

Rival contentions now fall for my consideration.

It has to be seen that undisputedly, the application for amendment was filed after evidence in the suit had commenced. The suit filed by the plaintiff is with respect to the property admeasuring 7 Acres 10 Gunthas as described in the plaint. Although, the plaintiff has attempted to introduce the pleadings about ‘Correction Deed’, in the entire plaint there are no averments with respect to the said document. The primary contention mentioned in the application for amendment that the ‘Correction Deed’ was filed on record alongwith plaint vide list of documents at Exhibit 4 was categorically denied by the defendants. On this crucial aspect, it was revealed during the course of arguments and even fairly submitted by the learned Advocate for the petitioner that the document of ‘Correction Deed’ was infact not filed alongwith list of document at Exhibit 4. Although the document of ‘Correction Deed’ was filed on record before the trial Court, later on, vide list of documents at Exhibit 41 dated 01.09.2014, the fact remains that there are no pleadings in the plaint about the said document. As such, the application for amendment filed after commencement of trial necessarily required the plaintiff to demonstrate due diligence on his part. A perusal of the application for amendment shows that there are no reasons mentioned by the plaintiff for not incorporating pleadings about ‘Correction Deed’ in the plaint. Primary reason about submission of the document vide list of documents at Exhibit 4 is not found to be acceptable. As such, the plaintiff’s contention in the application that the defendants had knowledge about the document of ‘Correction Deed’ and that they were not taken by surprise, are also not acceptable. Further contention of the petitioner-plaintiff that he is a rustic and illiterate person who believed on his earlier counsel who was negligent in drafting the plaint cannot also be considered to be sufficient enough to excuse due diligence on the part of the plaintiff.

The position of law as laid down in the judgments relied upon by the respective counsel for the parties is not disputed. In the peculiar facts of the case and in the wake of reasons mentioned in the application for amendment about filing of ‘Correction Deed’ alongwith list of documents at Exhibit 4 being found without any basis, the application deserved to be rejected.

A perusal of the impugned order shows that the trial Court has given due consideration to the relevant factual and legal aspects and there is no perversity with the impugned order. Having regard to the aforesaid, no indulgence is warranted under Article 227 of the Constitution of India. The writ petition deserves to be dismissed and the same is accordingly dismissed with no order as to costs. Rule stands discharged.