High Court

Legal Reasoning

19 WP NO.5968.2016-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD19 WRIT PETITION NO. 5968 OF 2016Shantabai Devidasrao JoshiAge : 73 years, Occu : Agri,R/o Chikhali, Tq. Kandhar, At Present C/o Shashikant DevidasraoJoshi, Bank Colony, Near WamanNagar, Nanded, Tq. Dist. Nanded…. Petitioner (Ori. Defendant)VersusBaburao Ramdeo JoshiAge : 69 years, Occu : Agri,R/o Chikhali, Tq. Kandhar, Dist. Nanded…. Respondent (Ori. Plaintiff)...Advocate for the Petitioner : Mr. B. S. KudaleAdvocate for Respondent : Mr. H. I. Pathan...CORAM : MANJUSHA DESHPANDE, J.Dated : March 17, 2025ORAL JUDGMENT :-1.Rule. Rule made returnable forthwith. Heard finally withthe consent of parties.2.The petitioner is challenging the order dated 06.04.2016,passed below Exh. 107 in Regular Civil Suit No. 40 of 2003 by Jt. 19 WP NO.5968.2016-2- Civil Judge Junior Division, Kandhar (hereinafter “Trial Court”). Thepresent petitioner is the original defendants in the suit whereas thepresent respondent is the original plaintiff.3.Respondent herein has filed civil suit for declaration andinjunction against the petitioner. The petitioner has filed her writtenstatement cum counter-claim at Exh. 30 challenging the contentionsraised by the respondent. On the basis of rival pleadings of theparties, Issues were framed at Exh. 40.4.Thereafter, the petitioner has filed an application at Exh.107 under Order VI Rule 16 and 17 read with Section 151 of Code ofCivil Procedure. It was the contention of the petitioner that para No. 6of the written statement is unnecessary since it contains the detailsabout the Special Civil Suit No. 9/1983 which is in no way concernedwith the present proceeding. Inadvertently, the details about SpecialCivil Suit No. 9/1983 have been incorporated in the said paragraph.Therefore, it is necessary to delete the averments made in the saidparagraph.5.Even, the additional contents mentioned in the same para(C) are also regarding the Special Civil Suit No. 9 of 1983 andRegular Civil Appeal No. 211 of 1986. The contents of both the 19 WP NO.5968.2016-3- proceedings has not relate to the litigation between the parties. Thereis compromise arrived at between the parties in Special Civil Suit No.9 of 1983 and Regular Civil Appeal No. 211 of 1986. The parties topresent suit are different and not concerned with the earlier suit.Therefore, it is necessary to strike off the contents of writtenstatement.6.It is the contention of the learned Advocate for thepetitioner that while filing the written statement, certain avermentshave been made which are unnecessary for decision of the presentsuit. Therefore, it needs to be struck off. It is further contention of thepetitioner that due to the averments made in the para No. 6,additional Issue No. 4 has been framed which reads thus :“Does plaintiff prove that she is in possession over suit landas per compromise taken place in between plaintiff anddefendant in appeal No. 211 of 1986 ?”7.It is submitted that the above issue does not pertain tothe real dispute between the parties. Therefore, petitioner seeksliberty to delete the above mentioned portion from the writtenstatement and substitute it with an averment that “The contents of thepara No. 6 in the plaint are false and are not admitted to therespondents”. On this background, the application (Exh. 107) was 19 WP NO.5968.2016-4- filed by the defendant seeking permission to strike off the para No. 6and Clause ‘C’ from the written statement.8.It is the contention of the learned Advocate for thepetitioner that since the parties to the present suit were different andthe parties in Special Civil Suit No. 9 of 1983 which was compromisedbetween the parties were different. The necessary amendment asprayed by the petitioner should have been allowed by the Trial Court.The Trial Court has failed to exercise its jurisdiction in accordancewith Order VI Rule 16 and 17 of CPC. Therefore, interference by thisCourt is necessary.9.It is further contention of the learned Advocate for thepetitioner that parties to the suit as well as compromise which wasarrived at between the parties were different from the parties in thepresent suit. Therefore, it is necessary to exercise the jurisdiction.Learned Advocate for the petitioner relies on the judgment of Hon’bleSupreme Court in case of Abdul Razak (dead) through L.Rs. And Ors.Vs, Mangesh Rajaram Wagle and Ors. [2010(3) Mh. L. J. 6]. LearnedAdvocate specifically relied on paragraphs No. 19 and 20 of the saidjudgment, which reads thus :19. In this case, the learned trial Court did make areference to the provisions of Order VI Rule 16 and held 19 WP NO.5968.2016-5- that the application made by the plaintiffs (respondent Nos.1 and 2 herein) does not fall in either clauses of Rule 16.The learned Single Judge of the High Court did not evenbother to notice Order VI Rule 16 what to say of consideringits applicability to the pleadings contained in the additionalwritten statement and granted the prayer of respondentNos. 1 and 2 by assuming that the plea raised by theappellants was inconsistent with the defence set up by theirpredecessor-in-interest. In our opinion, the learned SingleJudge did not have the jurisdiction to direct striking off theadditional written statement without being satisfied thatrespondent Nos. 1 and 2 were able to make out a case forexercise of power by the court under either of three clausesof Order VI Rule 16 CPC. Re: (iii) : 20. Although, from the record produced before this Courtit is not clear whether respondent Nos. 1 and 2 had filedwrit petition under Article 226 of the Constitution of Indiaor they had invoked supervisory jurisdiction of the HighCourt under Article 227 of the Constitution, but a reading ofthe impugned order does not leave any manner of doubtthat while granting relief to respondent Nos. 1 and 2, thelearned Single Judge did not keep in mind the guidingprinciples laid down by this Court for exercise of powerunder Articles 226 or 227 of the Constitution. It seems to usthat the learned Single Judge decided the matter byassuming that he was hearing an appeal against the order ofthe trial Court. If this was not so, the learned Single Judgewas duty bound to first consider whether he was calledupon to exercise power under Article 226 of theConstitution of India or under Article 227 thereof. Ifrespondent Nos. 1 and 2 had invoked the High Court'sjurisdiction under Article 226, then the learned Single Judgeought to have considered whether the trial Court committeda jurisdictional error by refusing to strike off the additional 19 WP NO.5968.2016-6- written statement filed by the appellants or it was a case offailure on the part of the trial Court to exercise the powervested in it under Order VI Rule 16 CPC or the order underchallenge was vitiated by an error of law apparent on theface of the record or there was violation of the rules ofnatural justice. In either case, the learned Single Judge wasalso required to consider whether there has been substantialfailure of justice or manifest injustice has been caused torespondent Nos. 1 and 2 on account of the trial Court'srefusal to strike off the additional written statement. Theseare the parameters laid down by this Court in Syed Yakoobv. K.S. Radhakrishnan AIR 1964 SC 477. If the petition filedby respondent Nos. 1 and 2 was under Article 227 of theConstitution of India, then the learned Single Judge shouldhave taken note of the often quoted judgment in Surya DevRai v. Ram Chander Rai (2003) 6 SCC 675, in which a two-Judge Bench, after threadbare analysis of Articles 226 or227 of the Constitution and considering large number ofjudicial precedents on the subject, recorded the followingconclusions:"(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannotand does not affect in any manner the jurisdiction of theHigh Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate tothe High Court, against which remedy of revision has beenexcluded by CPC Amendment Act 46 of 1999 arenevertheless open to challenge in, and continue to besubject to, certiorari and supervisory jurisdiction of the HighCourt.(3) Certiorari, under Article 226 of the Constitution, isissued for correcting gross errors of jurisdiction i.e. when a 19 WP NO.5968.2016-7- subordinate court is found to have acted (i) withoutjurisdiction -- by assuming jurisdiction where there existsnone, or (ii) in excess of its jurisdiction -- by overstepping orcrossing the limits of jurisdiction, or (iii) acting in flagrantdisregard of law or the rules of procedure or acting inviolation of principles of natural justice where there is noprocedure specified, and thereby occasioning failure ofjustice.(4) Supervisory jurisdiction under Article 227 of theConstitution is exercised for keeping the subordinate courtswithin the bounds of their jurisdiction. When a subordinatecourt has assumed a jurisdiction which it does not have orhas failed to exercise a jurisdiction which it does have or thejurisdiction though available is being exercised by the courtin a manner not permitted by law and failure of justice orgrave injustice has occasioned thereby, the High Court maystep in to exercise its supervisory jurisdiction.(5) Be it a writ of certiorari or the exercise of supervisoryjurisdiction, none is available to correct mere errors of factor of law unless the following requirements are satisfied: (i)the error is manifest and apparent on the face of theproceedings such as when it is based on clear ignorance orutter disregard of the provisions of law, and (ii) a graveinjustice or gross failure of justice has occasioned thereby.(6) A patent error is an error which is self-evident i.e. whichcan be perceived or demonstrated without involving intoany lengthy or complicated argument or a long-drawnprocess of reasoning. Where two inferences are reasonablypossible and the subordinate court has chosen to take oneview, the error cannot be called gross or patent.(7) The power to issue a writ of certiorari and thesupervisory jurisdiction are to be exercised sparingly andonly in appropriate cases where the judicial conscience ofthe High Court dictates it to act lest a gross failure of justiceor grave injustice should occasion. Care, caution andcircumspection need to be exercised, when any of the 19 WP NO.5968.2016-8- abovesaid two jurisdictions is sought to be invoked duringthe pendency of any suit or proceedings in a subordinatecourt and the error though calling for correction is yetcapable of being corrected at the conclusion of theproceedings in an appeal or revision preferred thereagainstand entertaining a petition invoking certiorari orsupervisory jurisdiction of the High Court would obstructthe smooth flow and/or early disposal of the suit orproceedings. The High Court may feel inclined to intervenewhere the error is such, as, if not corrected at that verymoment, may become incapable of correction at a laterstage and refusal to intervene would result in travesty ofjustice or where such refusal itself would result inprolonging of the lis.(8) The High Court in exercise of certiorari or supervisoryjurisdiction will not convert itself into a court of appeal andindulge in reappreciation or evaluation of evidence orcorrect errors in drawing inferences or correct errors ofmere formal or technical character.(9) In practice, the parameters for exercising jurisdiction toissue a writ of certiorari and those calling for exercise ofsupervisory jurisdiction are almost similar and the width ofjurisdiction exercised by the High Courts in India unlikeEnglish courts has almost obliterated the distinctionbetween the two jurisdictions. While exercising jurisdictionto issue a writ of certiorari, the High Court may annul or setaside the act, order or proceedings of the subordinate courtsbut cannot substitute its own decision in place thereof. Inexercise of supervisory jurisdiction the High Court may notonly give suitable directions so as to guide the subordinatecourt as to the manner in which it would act or proceedthereafter or afresh, the High Court may in appropriatecases itself make an order in supersession or substitution ofthe order of the subordinate court as the court should havemade in the facts and circumstances of the case." 19 WP NO.5968.2016-9- 10.Per contra, learned Advocate Mr. Pathan appearing forthe respondent submits that the Judge of the Trial Court has rightlypassed the order rejecting the application. It is his contention that theapplication is filed at belated stage i.e. after recording the evidence ofpresent petitioner. The petitioner has filed present application as anafterthought, after the suit has reached an advanced stage. He furthercontends that an additional issue is also framed on the basis ofpleadings of the parties, more particularly, on the basis of thepleadings of the defendants in para No. 6. In order to prove theadditional issue, witnesses are also examined. Therefore, on the afore-mentioned background, the order passed by the Judge of the TrialCourt does not deserve any interference.11.Learned Advocate for the respondent relies on the orderdated 18.11.2015 passed by this Court in Writ Petition No. 8993 of2014 (Poonamchand Jangly Gawli and Ors. Vs. Dasrao UttamraoHambarde and Ors.) wherein this Court has refused to interfere withthe order of the Trial Court wherein the Trial Court has rejected theapplication for amendment in written statement which is made atbelated stage.12.I have heard respective parties. While passing theimpugned order, the Judge of the Trial Court has referred to the 19 WP NO.5968.2016-10- averments made in the application. Defendant has stated that thewritten statement is prepared in English and she is not conversantwith English. The Advocate engaged on her behalf has prepared thewritten statement in a hurry. Due to which certain unnecessaryaverments, not connected to the present matter are made in thewritten statement, which are required to be deleted.13.The Judge of the Trial Court has recorded that theproperty which is mentioned in the present suit i.e. R.C.S. No 40 of2003 and the property mentionedin Spcl. C. S. No. 9 of 1983 is oneand the same. There is no substance in the application filed by thedefendant that subject matter between the parties in R.C.S. No. 9 of1983 and R.C.S. No. 40 of 2003 is different.14.It is further observed by the Trial Court that thedefendant was the served with suit summons on 02.11.2003 and shewas appeared on 03.11.2003. Thereafter, she availed 7 dates in orderto file written statement and on 12.08.2004, she has filed writtenstatement cum counter-claim. Therefore, there is no substance in thecontention raised by the present petitioner that the written statementwas filed hurriedly. Trial Court has rightly observed that theamendment sought by the defendant is not only necessary fordetermining the controversy between the parties but it is very much 19 WP NO.5968.2016-11- relevant and necessary for the decision in the pending suit since thesuit property in the pending suit appears to be same as mentioned inR.C.S. No. 9 of 1983 and R.C.S. No. 40 of 2003. It is, therefore,observed that all the record produced by the defendant shows that thefact mentioned in the para No. 6 and other additional facts in writtenstatement cum counter-claim are relevant for the decision of thepresent suit.15.It is further observed that the suit is pending for the finalarguments and trial has already commenced. Therefore, it wasnecessary for the defendants to give specific reason that depsite thedue diligence, this issue could not be raised before thecommencement of the trial. Considering the conspectus of the matter,the Trial Court has rejected the application seeking amendment.16.Order VI Rule 16 and 17 of CPC reads thus :16. Striking out pleadings.— The Court may at any stage ofthe proceedings order to be struck out or amended anymatter in any pleading -(a) which may be unnecessary, scandalous, frivolous orvexatious, or(b) which may tend to prejudice, embarrass or delay the fairtrail of the suit, or(c) which is otherwise an abuse of the process of the Court.]17. Amendment of pleadings.— The Court may at any stageof the proceedings allow either party to alter or amend his 19 WP NO.5968.2016-12- pleadings in such manner and on such terms as may be just,and all such amendments shall be made as may be necessaryfor the purpose of determining the real questions incontroversy between the parties:Provided that no application for amendment shall be allowedafter the trial has commenced, unless the Court comes to theconclusion that in spite of due diligence, the party could nothave raised the matter before the commencement of trial.17.The petitioner who is defendant in the suit has filedwritten statement cum counter-claim, therefore, Order VI Rule 16 and17 will be applicable. Proviso to Rule 17, imposes restriction onamendment of pleadings after the trial commences. Considering thestage of the suit which was pending for final arguments, it wasnecessary for the applicant / defendant to demonstrate that despitedue diligence, the issue could not be raised by her before thecommencement of the trial. Therefore, the Judge of the Trial Courthas rightly refused to entertain the application filed by the defendant.18.Similarly, considering that the property mentioned in theSpcl. C. S. No. 9 of 1983 i.e. agricultural land in Sy. No. 66 area ad-measuring 6H – 72R at village Chikhali, Tq. Kandhar, Dist. Nanded isthe same property which is subject matter in present suit and thepresent petitioner is claiming the possession on the basis of thecompromise that was arrived at in the earlier suit, the application 19 WP NO.5968.2016-13- seeking striking out pleadings did not deserve to be entertained. 19.In view of the above, I do not find that the Judge of theTrial Court has erred in refusing to strike off the contents of para No.6 wherein the details of the property in the earlier suit have beenincorporated. More so, in view of the fact that on the basis of thepleadings of the parties, the additional issue has already been framedby the Trial Court, and on the basis of the additional issue, evidence isalso led by the parties Therefore, after framing of issues andexamining the witnesses, application for amendment seeking strikingoff averments made in the written statement could not have beenallowed which has been rightly rejected by the Trial Court.Considering the stage of the suit, the Trial Court has rightly refused toentertain the application.20.In view of the conspectus of the matter, I do not find thatthere is case made out by the petitioner for interference in theimpugned order. Hence, writ petition stands dismissed. Rule isdischarged.(MANJUSHA DESHPANDE, J.)Omkar Joshi