Sharad Haribhau Chavan and others v. Satyajeet Suresh Veer and Others

Judgment

1. Rule. Rule made returnable forthwith. Since short point is involved, by consent writ petition is taken up for final hearing.

2. By filing this writ petition under Articles 226 and 227 of the Constitution, the Petitioner is challenging trial court's order rejecting his application for amendment. The

Petitioners are the original Plaintiffs and the Respondents are the Defendants.

3. The Petitioners filed Special Civil Suit No.130 of 2008 in the Court of Civil Judge, Senior Division, Satara for patilsr WP-5110/11. cancellation of sale deed. It was the contention of the Petitioners that they are owners of the suit property and the Respondents obtained sale deed from them by mis- representation. By filing written statement, the Respondents denied Petitioner's case and contested the suit. The learned trial Court framed the issues including the issue of limitation. Thereafter trial commenced. The Petitioners filed affidavit of evidence of PW-1 in-lieu-of examination-in-chief and he is under cross-examination. During the cross examination, the Petitioners realised that in the plaint date of sale deed under challenge is incorrectly mentioned as 26-02-2004 in stead of correct date 26-10-2004. The Petitioners accordingly filed an application for amendment to correct this mistake. The application was opposed by the Respondents. By the impugned order in this writ petition, the learned trial Court has rejected the application.

4. Mr.Talkute, learned counsel for the Petitioners took me through plaint, written statement and the application filed by the Respondents for framing preliminary issue and pointed out that correct date of sale-deed is 26-10-2004, however, at some places in plaint and prayer clauses it is inadvertently patilsr WP-5110/11. written/typed as 26-02-2004. He submitted that the amendment is of technical and formal nature and though the trial has commenced, amendment deserves to be granted. He submitted that if the amercement is not allowed, the suit will become useless. In support of his case, he relied upon following decisions of the Apex Court : Surender Kumar Sharma vs. Makhan Singh [(2009) 10 SCC 626], Puran Ram vs. Bhaguram & Anr. [Mh.L.J. 2008(4) 1] and Usha Devi v.s Rijwan Ahamd & Ors. [(2005) 3 SCC 717].

5. Mr. Kapse, on the contrary, supported the impugned order by contesting the petition. He submitted that the application filed at belated stage is rightly not entertained by the learned trial Court in view of the proviso to Order-VI Rule-17 the Code of Civil Procedure, 1908. He submitted that the amendment application cannot be allowed as the mistake sought to be corrected is not typographical mistake. He placed reliance upon J. Samuel & Ors v/s. Gattu Mahesh & Ors [(2012) 2 SCC 300].

6. Having heard learned counsel for the respective parties and having gone through the impugned order alongwith the written statement and other documents, I find patilsr WP-5110/11. merit in the writ petition. Suit is filed in the year 2008 and therefore proviso to Rule-17 Order-VI, the Code of Civil Procedure, 1908 is applicable to the present case inasmuch as trial has already commenced. The suit is filed for concellation of the sale deed dated 26-2-2004 [the correct date is 26-10- 2004] on the ground that the Respondents have got executed the sale-deed by mis-representation.

7. Perusal of plaint discloses that in paragraph No.9 and prayer clause (a), the date of sale deed is mentioned as 26-02-2004. In paragraph 6, however, the date of sale deed is mentioned as 26-10-2004. The Respondents have filed written statement. In paragraph 10 of the written statement the Respondents have denied the averments made by the plaintiff in paragraph 9 of the plaint. The Respondents specifically averred that sale-deed dated 26-10-2004 executed by the Plaintiffs is legal and binding upon the Plaintiffs. In paragraph 13 of the written statement, the Respondents have made reference to the said sale deed and it is alleged to have been executed on 26-10-2004.

8. That apart, the Respondents, as stated above, have filed application for framing preliminary issue. In this patilsr WP-5110/11. application, in paragraph 2 the Respondents made averments that the Petitioners are praying for cancellation of sale deed dated 26-10-2004. After commencement of trial, Plaintiff no.1 filed his affidavit of evidence in lieu of examination-in-chief and he is under cross-examination. In this cross-examination suggestion was given to PW-1 that sale deed dated 26-10- 2004 was executed for legal necessity, which was denied by the Plaintiff. The suggestion was also given that there was no sale deed executed between the parties on 26-02-2004, which was denied. The Plaintiff has however, stated that sale deed was executed on 26-02-2004. At this stage, the Plaintiff realised their mistake and therefore filed application at Exhibit- 50 for amendment of plaint so as to correct the date of sale deed from 26-02-2004 to 26-10-2004. The learned trial Court, as stated above, has rejected the said application on the ground of delay. In my view, the order cannot be sustained. As stated above, at one place in plaint, the Plaintiff has given correct date of sale-deed, namely, 26-10-2004, however, at two places, the date of sale-deed is written as 26-02-2004. The Respondents also proceeded on the footing that date of sale-deed is 26-10-2004. In written statement, the patilsr WP-5110/11. Respondents at more than one place made specific reference that sale deed was executed on 26-10-2004. In an application for framing preliminary issue, the Respondents have stated that the Petitioners have asked for cancellation of sale deed dated 26-10-2004. Thus, parties were well aware about the controversy involved in the suit and they understood and proceeded on the premise that the suit is for cancellation of sale deed dated 26-10-2004. In these circumstances, firstly there would not be any prejudice to the Respondents in case the amendment is allowed; and secondly, the amendment if not allowed and plaintiff is not permitted to correct the date of sale deed in the plaint, the plaintiff's suit will become useless.

9. The Apex Court in Surender Kumar Sharma (supra) held that the amendment introduced at belated stage can also be granted, if the same is necessary to resolve the real controversy. The Apex Court in Puran Ram (supra) held that it is permissible to amend the part of description of the suit property not only in the plaint but also in the agreement despite commencement of trial. In Usha Devi (supra), in similar circumstances the Apex Court held that error in describing the suit property in Schedule can be corrected for patilsr WP-5110/11. meeting the ends of justice. If the amendment sought in the present case is tested on the touchstone of the ratios laid down by the Apex Court in above cases, in my view, the same deserves to be allowed.

10. The decision of the Apex Court in J. Samuel (supra) relied upon by Mr.Kapse, learned counsel for the Respondents may not be applicable to the present facts and circumstances of the case. The Apex Court in that case on facts found that error which is sought to be corrected was not typographical error. The ratio may not be helpful to Mr. Kapse.

11. It is settled position of law that the Court should adopt liberal approach in grant of amendment especially when same is of technical and formal nature. In the present case, the amendment sought does fall within this category as the parties proceeded with full understanding that the date of sale- deed is 26-10-2004. Therefore, there is no prejudice to the Respondents. Though the proviso to Order-VI Rule-17, as stated above, is applicable in the present case, I find that the Petitioners came to know about typographical error when suggestion was given to his witness in cross-examination by the Respondents and thereafter immediately present patilsr WP-5110/11. application is filed. It seems that the Petitioners were unaware about this mistake till PW-1's cross-examination. The Petitioners in these circumstances therefore could not apply for amendment earlier. The amendment application, therefore, deserves to be allowed.

12. The Respondents have raised objection regarding limitation in their application for framing of preliminary issue. It seems that the Court has not framed preliminary issue, but issue of jurisdiction is framed under Order-XIV, Rule-1 of the Code of Civil Procedure, 1908. Irrespective of grant of amendment, the learned trial Court shall decide this issue on merits after hearing both the sides.

13. In above facts and circumstances of the case, rule is made absolute in terms of prayer clause (a). Necessary amendment shall be carried out within the period of two weeks from the date of receipt of a copy of this order. (RANJIT MORE, J.) patilsr