High Court · 2025
Legal Reasoning
Ethape( 1 ) 41-WP-1952-2025IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.1952 OF 2025 1. Jaysingh S/o. Shivajirao PanditAge-52 years, Occu.-Business,R/o. Subhash Road, Beed,Tq. & Dist. Beed. 2. Pratapsingh S/o. Vedprakash PatilAge-50 years, Occu. Agri.R/o. Magar Patta City, PuneTq. & Dist. Pune.3. Dnyaneshwar S/o. Bhagwat AarbadAge-33 years, Occu. Agri,R/o. Mategaon, Tq. Georai,Dist. Beed....PETITIONERS VERSUS1. Sadhanabai W/o. Sahebrao BhopaleAge 63 years, Occu- Agri & Household.2. Kisan S/o. Mahadeo RautAge-46 years, Occu.- Service & Agri.Both r/o. Beed, Tq. And Dist. Beed.3. Kambalbai W/o. Wamanrao RautAge 68 years, Occu. Agri. & Household.4. Sarjerao S/o. Wamanrao RautAge-32 years, Occu. Agri.
Legal Reasoning
Ethape( 2 ) 41-WP-1952-20255. Lata S/o. Mahadeo BedreAge.-36 years, Occu. Agri. & HouseholdAll R/o. Mukta Lawns, Balgujar, Barshi Road,Beed, Tq. & Dist. Beed.6. Lahane Charitable TrustThrough its Chief Promoter6-A. Dr. Shrihari S/o. Limbajirao LahaneAge.60 years, Occu. Medical Practitioner.6-B. Rukhmini W/o. Shrihari LahaneAge. 58 years, Occu. Medical practitioner. Both R/o. Vithai Hospital Jirewadi, Jalna Road,Beed, Tq. & Dist. Beed.7. Dinesh S/o. Govardhan HangeAge. 40 years, Occu. Legal practitionerR/o. Mali Ves, Beed, Tq. & Dist. Beed.8. Rajesh S/o. Govardhan HangeAge-38 years, Occu.-Legal PractitionerR/o. As above.9. Udaysingh S/o. Bansidhar PanditAge-45 years, Occu. Agri,R/o. Pandit Nursing Home, Jalna Road,Beed, Tq. & Dist. Beed.10. Ajaysingh S/o. Bansidhar PanditAge. 43 years, Occu. Agri.R/o. As above.11. Sahebrao S/o. Sonajirao BhopaleAge. 77 years, Occu. Medical Practitioner &Agri. R/o. Shahu Nagar, Beed, Tq. & Dist. Beed....RESPONDENTS Ethape( 3 ) 41-WP-1952-2025Mr.Amol S. Gandhi, Advocate for the petitioners.Mr. G. K. Naik-Thigle, Advocate for the Respondents. CORAM: KISHORE C. SANT, J.RESERVED ON: 14th FEBRUARY 2025PRONOUNCED ON: 4th MARCH 2025ORDER :-1.Heard the learned Advocate for the parties. 2.By consent of the parties, the petition is taken up for final disposalat the stage of admission.3.This petition arises out of an order dated 3rd January 2025 passedby the learned 3rd Joint Civil Judge, Senior Division, Beed, allowing theapplication of present Respondent Nos.1 & 2, plaintiff in Special CivilSuit No.93 of 2019. The present petitioners are the original defendantNos. 4, 5 and 6 and other respondents are the defendants in the suit. 4.By way of impugned order, the learned Judge has allowed theapplication Exh.321 filed by the plaintiffs seeking amendment in theprayer clause to the plaint. Ethape( 4 ) 41-WP-1952-20255.The parties are referred to as per their original status for thepurpose of convenience. The facts, in short, are that the plaintiff filed asuit seeking declaration that the sale-deed No.6701 of 2013 executed bypresent Respondent No.3 (defendant No.1) in favour of defendant Nos.4to 6 i.e. petitioners, is not binding on the plaintiffs. Further reliefclaimed of injunction not to disturb the possession of the plaintiffs overthe suit land. Issues were framed on 9th February 2021. The applicationwas filed under Order VI Rule 17 of Code of Civil Procedure, 1908 (forshort “C.P.C.”) by the plaintiffs at Exh.147 in the suit. The saidapplication came to be allowed. The said amendment was to adddefendant Nos.7 to 11. After they were impleaded as parties to the suit,the present defendant Nos.4 to 6 filed an application under Order XIVRule 5 of the C.P.C. for framing additional issues. Instead of framing ofadditional issues, the issue No.2 was amended. Thereafter, one moreapplication was filed under Order VI Rule 17 of C.P.C. by the plaintiffs.The said application also came to be allowed. The plaintiffs eventhereafter again filed one more application under Order VI Rule 17 ofC.P.C. below Exh.219. The said application came to be allowed. It Ethape( 5 ) 41-WP-1952-2025appears that, all these orders were not challenged. 6.The plaintiffs now again filed an application Exh.321 in view ofwritten statement of the defendant Nos.4 to 6 as in their say, they havedisputed the possession of the plaintiffs over the land admeasuring 2Acre 10R. In view of the same, it was prayed that the prayer be addedthat the plaintiff be declared as owner, possessor and title over the landdescribed in paragraph No.1 in the plaint. 7.This application was heavily opposed by the learned Advocate fordefendant Nos.4 to 6 mainly on the ground that the amendment isbeyond limitation. It is further stated that the written statement wasfiled at Exh.44 long back. The plaintiffs were aware about the contentsof the written statement. In the written statement, said defendants havedenied the ownership and possession of the plaintiffs on the said land.The suit is now at the stage of final hearing. Even earlier in 2019, theapplications were made for amendments and those were allowed. Thereis clear bar of Order VI Rule 17 of C.P.C. as the application is filed aftercommencement of trial and no due diligence is shown. Ethape( 6 ) 41-WP-1952-20258.The learned Trial Judge after considering various judgmentsallowed the application. It is observed that the amendment is necessaryto avoid technical difficulties. By way of amendment, only declaration ofthe ownership is sought. There is no dispute about the ownership andpossession of the plaintiff. The dispute is only in respect of southernboundaries of the suit property. The plaintiff do not wish to lead anyfurther evidence in view of proposed amendment. So it would not delayof the proceeding of the suit. The nature of the suit will not change. It isalso held that, no prejudice would be caused to the defendant byallowing the application. It is on this, the petitioners have approachedthis Court. 9.The learned Advocate for the petitioners submits that earlier twoamendments, applications were allowed by the Court and those attainedfinality. The suit proceeded further and now is posted for final hearing.At this stage, the plaintiffs have filed an application, the application isclearly time barred. The suit is filed in 2014. This application is filed on11th November 2024. By incorporating relief of declaration, there wouldbe change in the nature of the suit. The relief of declaration could have Ethape( 7 ) 41-WP-1952-2025been prayed when the suit was filed. The reason given in the applicationfor filing amendment is that in the written statement the defendantshave denied the ownership. This written statement at Exh.44 was filedlong back i.e. 23rd November 2016. Thus, the plaintiffs were aware ofthe averments in the written statement. Issues are framed long back onthe basis of pleadings. Thus, on the test of due diligence, the plaintiffs’application ought to have been rejected by the trial Court by allowingthe application for amendment at the fag end of the trial. The objectbehind filing the application is clear that the plaintiffs wants to prolongthe proceeding of the suit. The petitioner relied upon the followingjudgments:-(i)Archana Ashok Amburle Vs. Arpana Shankar Dudham & Ors.1(ii)Noor Kabirdin Meghani & Ors. Vs. Sanjeev Manuel D’Souza.2(iii)Ganpat Bhagoji Kshirsagar Vs. Anjana Krushna Jamdade.3(iv)Anita Anant Kaidalwar Vs. Suhas Manoharrao Umathe.410.Mr.Naik-Thigle, the learned Advocate for the respondentsvehemently opposed the petition. He submits that the learned Court has12019(2) Mh.L.J.6722021(5) Mh.L.J. 59432024 DGLS (Bom.) 390242024 (4) Bom.C.R. 765 Ethape( 8 ) 41-WP-1952-2025rightly considered the legal position and allowed the application. It isnecessary in the interest of justice to allow the amendment. The Courthas rightly used the discretion. The amendment is necessitated in viewof denial of the rights of ownership and possession of the plaintiff. It isonly in view of this, amendment is sought. He submits that the scope ofinterference at the hands of this Court while exercising Article 227 isvery limited. The proviso to Order VI Rule 17 of C.P.C. is procedural andnot a part of substantive law. He relied upon the judgments of theHon’ble Apex Court in the cases of Bharat Petroleum Corporation Ltd.Vs. Precious Finance Investment Pvt. Ltd.5 and Shalini Shyam Shetty andOrs. Vs. Rajendra Shankar Patil.6 11.In the case of Archna Amburle (supra) is concerned, theamendment application was filed when the suit was posted for finalargument and was adjourned on various dates and on one of the othergrounds and at that stage, application was filed. The said applicationcame to be rejected. This Court came to the conclusion that no case wasmade out to allow the application and rejected the petition. 52007 (1) Mh.L.J.3316(2010) 8 SCC 329 Ethape( 9 ) 41-WP-1952-202512.In the case of Noor Meghani and Ors. (supra) is concerned, theground was very well available to the plaintiff when he instituted thesuit. The amendment was neither based on any subsequent evidence noron new ground that became available after filing of the suit. In that view,the application for amendment was rejected. 13.In the case of Ganpat Kshirsagar (supra), this Court consideredthat the amendment in the plaint was allowed at belated stage andconsidering that the writ petition was allowed by setting aside the orderby which amendment application was allowed. In the case of AnitaKaidalwar (supra), the Court held that the defendant in that case failedto show due diligence. It was thus held that the proviso to Order VI Rule17 of C.P.C. comes into play and though the trial Court observed that thedefendant failed to prove due diligence and outstayed the application foramendment. In this view of the matter, this Court allowed the writpetition and quashed and set aside the order allowing amendment. Thiscourt finds that the petitioner has rightly placed reliance on abovejudgments. Ethape( 10 ) 41-WP-1952-202514.So far as judgment in the case of Bharat Petroleum CorporationLtd. (supra) is concerned, there is no dispute about the proposition.However, looking to the fact of this case it is clear that, the plaintiff hasutterly failed to show due diligence. Filing of earlier two applications foramendments shows that it would have been a different case had plaintiffapplied for such amendment immediately on filing of the writtenstatement by the defendant. In the present case, the application is filedafter almost eight years of filing of the written statement. This ismaterial because in the application the plaintiff has stated cause forfiling amendment application in view of averment in the writtenstatement. 15.So far as judgment in the case of Shalini Shyam Shetty (supra) isconcerned, it is held that it has discussed the powers of this Court forinterference under Article 226 and 227 of the Constitution of India.There is no dispute about the same. However, looking to the facts of thepresent case, this Court finds that said judgment is not applicable in thefacts of the present case. Ethape( 11 ) 41-WP-1952-202516. From the record it is clear that by way of amendment, applicationswere filed by the plaintiff and those were allowed. The written statementwas filed long back in 2016. Filing an application in 2024, i.e. after eightyears of filing of the written statement it is difficult to accept. The verycontents of application would show that the application is filed becauseof the averments in the written statement. This ground was availableeven when the first application for amendment was filed. Consideringthat, it is not only that issues are framed or evidence is started but nowsuit is posted for final hearing and at that stage, the application is filed. 17.Considering all above submission and the legal position, this Courtfinds that certainly the trial Court has committed a mistake by allowingthe application. Hence, the following order: ORDER(i)Writ petition stands allowed.(ii)The impugned order dated 3rd January 2025 passedbelow Exh.321 in Special Civil Suit No.93 of 2019 passed bythe learned 3rd Joint Civil Judge Senior Division, Been isquashed and set aside.
Decision
Ethape( 12 ) 41-WP-1952-2025(iii)Writ petition stands disposed off. [KISHORE C. SANT, J.]