High Court

Legal Reasoning

1 6554-20-WP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.6554 OF 2020Savita Dhondiram PatilAge: 45 years, Occu. Agriculture & DoctorR/o. A-2, 3/4, Mayur Park,HUDCO, Aurangabad… Petitioner (Orig. Defendant)Versus1]Azizabi w/o Mirza Isam BaigSince deceased through L.Rs.1A]Akhtar Bagum W/o. Sk. Hasan JahagirdarAge: 59 years, Occu. Household,R/o. Chamanpura,Gangapur, Dist. Aurangabad.1B]Afsar Begum w/o Sk. YaseenAge: 49 years, Occu. Household,R/o. Sakharam Pant Nagar,Gangapur, Tq. Gangapur,District – Aurangabad.2]Anwar Baig s/o Mirza Isam BaigSince deceased through L.Rs.2A]Farzana Begum W/o. Anwar BaigAge: 48 years, Occu. Household R/o. Sakharam Pant Nagar, Gangapur, Tq. Gangapur. District-Aurangabad2B]Mirza Akbar Baig S/o Mirza Anwar Beig Age 28 years, Occu. Business, R/o. Jahagir Colony, Harsul,Aurangabad2C]Mirza Azhar S/o Mirza Anwar BaigAge: 26 years, Occu. Business, R/o. Sakharam Pant Nagar,Gangapur, To. Gangapur, District Aurangabad.2D]Shrin D/o Mirza Anwar Baig Age 24 years, Occu. Household, R/o. Sakharam Pant Nagar, Gangapur, Tq. Gangapur, District - Aurangabad.SVH 2 6554-20-WP.odt2E]Farhana D/o Mirza Anwar Baig Age: 20 years, Occu. Education, R/o. Sakharam Pant Nagar, Gangapur, Tq. Gangapur,District Aurangabad.2F]Najima W/o Mirza Anwar Baig Age: 42 years, Occu. Household,R/o. Sakharam Pant Nagar,Gangapur, Tq. Gangapur, District Aurangabad.2G]Mirza Tayyab s/o. Mirza Anwar Baig Age: 14 years, Occu. Nil, Through her natural guardian Respondent No.2F2H]Fatima D/o Anwar Baig Age: 12 years, Occu. Nil Through her natural guardian Respondent No.2F3]Ismail Baig S/o Mirza Isam Baig Age: 35 years, Occu. Labourer R/o. Near Chaus STD, Katkatgate, Nehru Nagar, Aurangabad.4]Nazir Baig S/o Mirza Isam BaigAge: 25 years, Occu. Labourer,R/o. Sakharam Pant Nagar, Gangapur, District Aurangabad. ..Orig. Plaintiffs5]Nazir Baig S/o Aziz BeigAge: Major, Occu. Business,6]Riyaz Baig s/o. Aziz Baig Age: Major, Occu. Business,7]Faruque Baig S/o. Aziz Baig Age: Major, Occu. Agriculture,Respondent Nos.5 to 7 R/o. Khirdi, Taluka Khultabad, District-Aurangabad.8]Ejaz Baig S/o. Iqbal Baig Age: Major, Occu. Agriculture,9]Nasib Baig S/o. Iqbal Baig Age: Major, Occu. Business,10]Rauf Baig S/o. Iqbal BaigAge: Minor, Under the guardianship of his real mother Tasleembi W/o. Iqbal Baig11]Tasleembi W/o. Iqbal Baig SVH 3 6554-20-WP.odtAge: Major, Occu. HouseholdRespondent Nos. 8 to 11R/o. Khirdi,Taluka Khultabad, District – Aurangabad ..Orig. Def. Nos.1 to 712]Kachru PunjajiAge: Major, Occu. AgricultureR/o. Khirdi, Taluka Khultabad, District Aurangabad.13]Dhondiram Asaram Patil Since deceased through L. Rs.14]Rukhmanbai Dhondiram Patil Since deceased through L. Rs.14A]Dnyaneshwar S/o. Dhondiram PatilAge: Major, Occu. AgricultureR/o. Plot No.A-2, Mayur Park, Aurangabad.15]Sunita Dhondiram PatilAge: Major, Occu. Household,R/o. Plot No.A-2, Mayur Park,Aurangabad...Respondents (Orig. Defendant Nos.9 to 11)…..Mr. S.P. Shah, Advocate for PetitionerMr. Shaikh Tarek Mobin, Advocate for Respondent Nos.1A, 1B, 2A to2H, 3 & 4….. CORAM : MANJUSHA DESHPANDE, J. RESERVED ON : 17th JANUARY, 2025PRONOUNCED ON : 29th JANUARY, 2025ORDER : 1.The order dated 22/06/2020, passed by Civil Judge,Junior Division, Khultabad, below Exhibit-95 in Regular Civil SuitNo.116/2009, is impugned in the present writ petition. Thepetitioner had filed application at Exhibit-95 seeking amendment inthe written statement under Order 6 Rule 17 of the Civil ProcedureCode.SVH 4 6554-20-WP.odt2.Petitioner is daughter of original defendant No.12 anddaughter of defendant No.9 namely Dhondiram Asaram Patil,whereas respondent Nos.1 to 4 are original plaintiffs. RespondentNos. 5 to 11 are defendant Nos.1 to 7 and respondent Nos.12 to 15are original defendant Nos.9 to 11 in Regular Civil Suit No.116/2009.Defendant No.12 Dhondiram Patil, was pursuing litigation on behalfof respondent Nos.9 to 12 till his death.3.Facts in the nutshell giving rise to the litigation are asunder:One Vazir Baig was original owner of suit property GutNo.293 (Old Survey No.98), admeasuring 22 Acres situated atvillage Khirdi, Taluka Khultabad, District Aurangabad. He died in theyear 1941 leaving behind two sons Aziz and Isam. Plaintiffs are thelegal heirs of Isam Baig whereas defendant Nos.1 to 7 are legalheirs of Aziz Baig in R.C.S. No.116/2009. After the death of VazirBaig name of Aziz Baig was entered as exclusive owner in respect ofGut No.293. Aziz Baig started disposing the properties standing inhis name by way of executing sale deeds from the year 1972. On19/05/1972 he sold 3 Acres of land out of Gut No.293 to defendantNo.9 by registered sale deed No.1360. In the year 1983 petitioner/defendant No.12 purchased 3 Acres 25 Gunthas land out of GutNo.293 from Aziz Baig by registered sale deed. The suit propertywas sold by Aziz Baig in parts from 1972 to 1983. During the lifetime of Isam Baig, he did not take any objection to the sale deedSVH 5 6554-20-WP.odtexecuted by Aziz Baig. It is claimed by defendant No.12 that, on thecontrary Isam Baig has categorically admitted the exclusiveownership of his brother Aziz Baig in the written statement filed inR.C.S. No.173/1967 instituted by Hafizabee i.e. married daughter ofVazir Baig, for partition and separate possession. R.C.S.No.173/1967 was decreed and on the basis of decree she has alsosold 4 Acres and 19 Gunthas land out of Gut No.293 to defendantNo.10 by registered sale deed.4.Isam Baig died in the year 1997. When plaintiffs i.e.legal heirs of deceased Isam Baig filed suit for partition andinjunction on 09/03/2007, petitioner along with other defendantshad already purchased suit property almost 30 to 40 years ago, andthe suit is in collusion with legal heirs of Aziz Baig. Learnedadvocate for petitioner submits that during the lifetime of Isam Baighe has not raised any objection as regards the sale of suit property.The suit has been filed with an intention to harass the petitioner andother defendants. After service of summons defendant No.12 i.e.present petitioner appeared along with defendant Nos.9 to 11 andfiled their common written statement. Issues came to be framed on19/09/2014, affidavit of examination-in-chief on behalf of plaintiffhas been filed on 17/06/2016. It is contended by petitioner that inthe meanwhile during pendency of proceedings, father of petitionerdefendant No.9 namely Dhondiram Patil died in the year 2015. Hewas pursuing litigation on behalf of respondent Nos.9 to 12.SVH 6 6554-20-WP.odt5.Learned advocate for petitioner submits that after deathof defendant No.9 petitioner was not aware about the litigationpending between the parties, so also, she did not have any legalknowledge about the Court proceedings. Unfortunately during thesaid period she was also not guided properly by the advocateengaged by her in the trial Court. Therefore, she appointed one ShriTandale, to advocate her cause, but due to demise of Mr. Tandale inthe year 2018 she was constrained to change her advocate.Accordingly, she appointed Mr. Uttam Jadhav as her advocate.Though she had handed over the documents relating to the suit toearlier advocate, no proper steps were taken by him. On 23/08/2019she again changed her advocate and during the discussion with newadvocate she realised that it is necessary to amend the writtenstatement on the basis of stand taken by father of plaintiffs in R.C.S.No.173/1967. Accordingly application below Exhibit-95 was filed on18/09/2019 on behalf of defendant No.12 seeking amendment inthe written statement, to place on record the copy of writtenstatement filed by Isam Baig in R.C.S. No.173/1967. According tohim, in the written statement Isam Baig had taken a stand that AzizBaig was exclusive owner of said property. In the application it wasspecifically contended that, if the application is allowed theamendment sought does not change the nature of suit of plaintiff,however, if it is not allowed it would cause irreparable loss topetitioner.SVH 7 6554-20-WP.odt6.Plaintiffs resisted the said application by filing their say,on the ground that there is delay in filing the written statement.Trial Court after taking into consideration the application and thesay filed by respondents has rejected the application below Exhibit-95 vide order dated 22/06/2020, which is impugned in the presentwrit petition.7.Trial Court while rejecting the application observed thatthe proposed amendment is not material for the proper andeffective adjudication of present suit. The application has been filedafter commencement of trial and defendant No.12 has neitherexplained delay nor given any reason stating as to what preventedher from filing the application for proposed amendment during theintervening period. Thus, the application for proposed amendmentwas rejected by holding that it does not appear to be bonafide,legitimate, honest and necessary for conclusion of the suit.However, if the amendment is granted it would cause hardship andprejudice to the plaintiff.8.According to learned advocate for petitioner it needs tobe appreciated that while filing application petitioner has properlyexplained the delay caused in filing the application. It is a specificcontention of applicant that though the written statement was filedon 19/11/2007, it is only during the pendency of civil suit defendantNo.12 came to know about earlier suit bearing R.C.S. No.173/1967filed by Hafizabee against Aziz Baig and Isam Baig for partition andSVH 8 6554-20-WP.odtseparate possession in respect of suit property. On getting theknowledge she has immediately filed for certified copy of judgmentand decree passed in the said suit along with copy of writtenstatement filed by Aziz Baig and Isam baig. It is stated that at thetime of filing of written statement in the present suit, the copy ofwritten statement filed in R.C.S. No.173/1967 was not in thepossession of defendants. Therefore, pleadings to that effect couldnot be incorporated to the written statement. The proposedamendment would help to resolve the real controversy. Since thepetitioner was not in possession of the written statement filed bypredecessor in the title of plaintiff i.e. Isam Baig, she could notincorporate it in the written statement.9.According to learned advocate for petitioner he hassufficiently demonstrated in the application itself that defendantNo.12 was not aware about the contents of written statement filedby Isam Baig in R.C.S. 173/1967, therefore, the same could not beincorporated in the pleadings. It is only after getting knowledge ofthe same in October, 2017, she has applied for certified copy andafter receiving it, she has filed present application.10.Learned advocate has drawn my attention to the copyof written statement filed by Isam Baig in R.C.S. No.173/1967. Insaid written statement, stand of Isam Baig was all along thatdefendant No.1 is the exclusive owner and occupier of theproperties. It was his stand that Survey Nos.61 and 98 are notSVH 9 6554-20-WP.odtMatrooks or ancestral properties, they are exclusively owned andpossessed by defendant No.1 independently.11.The learned advocate Mr. Shah submits that, in view ofstand that was taken by Isam Baig through whom plaintiffs areclaiming to be the owners, seeking declaration of partition andseparate possession of the suit properties, the amendment isnecessary. Learned advocate for petitioner contends that her fatherDhondiram Patil defendant No.12 was taking care of the matter onbehalf of defendant Nos.9 to 12 and therefore, she was not awareabout litigation and details of the proceeding. After his death in theyear 2015 she came to know about the litigation. She being amarried lady is residing with her husband at Shirpur, Dist. Dhule aswell as at Jalgaon, for work with her husband. Present litigation ispending at Khultabad, District Aurangabad. She is a housewife andis not aware about the legal proceedings. Therefore, after the deathof her father she had difficulty in pursuing the litigation. She had tocome to Aurangabad and meet her advocate before trial Court. InOctober, 2017, she came to know about the R.C.S. No.173/1967,however, she was not aware about the contents of the writtenstatement filed by Aziz Baig and Isam Baig in the said suit.Therefore, only after getting knowledge of the contents of thewritten statement she has filed the application.12.Learned advocate for petitioner submits that in fact theobservations made by the Trial Court are not tenable in view of theSVH 10 6554-20-WP.odtfact that in paragraph No.12 of the application itself she hascategorically stated that since she was not in possession of thewritten statement filed in R.C.S. No.173/1967, she could not makepleadings to that effect.13.Learned advocate for petitioner submits that the Courtsare liberal while allowing the application for amendment in writtenstatement than that of plaint, since the question of prejudice wouldbe far less in the former than in the latter, so also, addition of newground of defence or substituting or altering a defence or takinginconsistent pleas in written statement can also be allowed. Insupport of his contention, he has placed reliance on the judgment ofSupreme Court in Sushil Kumar Jain Vs. Manoj Kumar andAnother, [(2009) 14 SCC 38]. Similar view has been re-iterated incase of Usha Balasaheb Swami Vs. Kiran Appaso Swami,[(2007) 5 SCC 602], in para 19 of the judgment it is observedthat, the general principle that amendment of pleading cannot beallowed so as to alter materially or substitute cause of action ornature of claim, applies to amendment of plaint. It has nocounterpart in principles relating to amendment of writtenstatement.14.Learned advocate for petitioner is also relying on thedecision of Supreme Court in Sharadamma Vs. MohammedPyrejan (Dead) and Another, [(2016) 1 SCC 730]. Thejudgment has been cited by petitioner in order to counter theSVH 11 6554-20-WP.odtsubmission of learned advocate for respondents wherein he hastaken objection to the right of petitioner to continue with the writpetition on the ground that petitioner has created third party right inthe property. It is alleged that petitioner after getting stay to the suitin the writ petition has executed sale deed of suit land in favour ofthird party vide registered sale deed dated 16/04/2024.15.Petitioner is relying on the order passed by the SupremeCourt in Ram Sumiran and Others Vs. D.D.C. and Others,[(1985) 1 SCC 431], wherein it his held that, since appellants areadmittedly from rural area in the country like ours where there is somuch poverty, ignorance and illiteracy, it would not be fair topresume that everyone knows that on death of a respondent, thelegal representatives have to be brought on record within a certaintime. Learned advocate for petitioner submits that judicial note ofthe above said judgment also needs to be taken into considerationsince the petitioner who is defendant No.12 also belongs to weakersection of the society who is not aware about her rights and theimportance of taking timely steps in the pending proceedings. 16.Learned advocate for respondents has further opposedthe prayer on the ground that as per the record defendant No.12obtained copy on 30/10/2011 and proposed amendment has beenfiled in the year 2019, hence it cannot be said that defendant No.12has exercised due diligence. Therefore, the application deserves tobe rejected. It is further contended that this application is noting butSVH 12 6554-20-WP.odta stunt for protracting the litigation. When the matter is posted forcross-examination and major portion of cross-examination is alreadyover by other defendants, the application for amendment of writtenstatement has been filed. Hence, according to respondentsdefendant has failed to demonstrate that in spite of due diligencethe defendant could not obtain the necessary information toincorporate in written statement before the trial commenced. Inabsence of explanation about exercising due diligence andsatisfaction of the Court about it, application seeking amendment ofwritten statement deserves to be rejected.17.Trial Court has observed that, though it is claimed bydefendant No.12 that she has obtained copy of written statement inR.C.S. No.173/1967 on 30/10/2017, she has filed application foramendment in written statement on 18/09/2019 i.e. after laps ofalmost 22 to 23 months. There is no explanation or reason given bydefendant No.12 as to why inspite of written statement having beenreceived on 30/10/2017, she remained silent for two years and whatprevented her from making proposed amendment. 18.Learned advocate for respondents has opposed the writpetition by filing affidavit on behalf of respondent Nos.1A, 1B, 2A to2H, 3 and 4. Respondents have opposed the petition on the groundthat petitioner has suppressed material facts about having executedregistered sale deed of the suit land in favour third party videregistered sale deed dated 16/04/2024. It is the contention ofSVH 13 6554-20-WP.odtrespondents that since interest of the present petitioner is ceasedin the matter, the petitioner has no right to continue with thepresent proceedings. The delay in preferring the application, afterreceiving copy of written statement has also not been explained bydefendant No.12. There is enormous delay of 13 years in movingthe application. In the written statement filed on 19/11/2007,petitioner has specifically pleaded that R.C.S. No.173/1967 filed byHafizabee was decreed on 17/08/1968, hence, it is clear thatpetitioner was aware about said proceeding. Therefore, theapplication has been rightly rejected by the trial Court. DefendantNo.12 has made false and incorrect statement in the applicationbelow Exhibit-95.19.While opposing the application original plaintiffs havefiled their say contending that the present petitioner had alreadyappeared and filed written statement on 19/11/2007. After long gapof 12 years when the issues are already settled and affidavit inrespect of examination-in-chief has already been filed, theapplication is moved for amendment in written statement. ThoughOrder 6 Rule 17 provides that pleadings of the party can beamended at any stage, however, the proviso makes it clear that ifthe trial has commenced the party seeking amendment has toprove that in spite of due diligence the party could not have raisedthe matter before commencement of trial. In the present case,applicant has failed to demonstrate that in spite of due diligenceSVH 14 6554-20-WP.odtexercised by him, he has failed to incorporate proper pleadings. 20.It is further contended that the so-called admission inthe written statement in R.C.S. No.173/1967 has been rejected bythe trial Court and the suit was decreed vide judgment and decreedated 17/06/1968. Thus, there is no necessity of bringing thepleadings in earlier written statement on record, since eventuallythat suit has been decreed and contents of that written statementwould not be acceptable in the present litigation. Therefore,according to the respondents since the application is moved afterhuge delay for which there is no justifiable explanation, the same isrightly rejected by the Trial Court.21.Learned advocate for respondent has also relied on thejudgment of this Court at Nagpur Bench in Writ PetitionNo.3147/2014 (Chandrashekhar Vs. Balkrishna and Others), whereinimportance of due diligence has been observed. In the saidjudgment, this court has observed that, the application filed bypetitioner seeking permission to amend the written statement aftercommencement of trial could not have been entertained andallowed by trial Court as petitioner has not even averred as to whatprevented him from bring on record the facts sought to beincorporated by the proposed amendment.22.Learned advocate has also relied on the judgment ofthis Court at Nagpur Bench in Writ Petition No.1322/2013 (JayashreeSubhash Kalbande and Others Vs. Bhaurao Nagorao Derkar andSVH 15 6554-20-WP.odtOthers), wherein the law of due diligence has been summarized.Para 8 of the said judgment reproduces the various principles on theissue of due diligence. He has also submitted various judicialpronouncements of Supreme Court in support of his contention that,if there is delay in filing application seeking amendment of writtenstatement, the same cannot be allowed if it is filed at the fag end ofthe trial and in absence of explanation about exercise of duediligence.23.Though the provision of Order 6 Rule 17 is very muchliberal and it permits amendment of pleadings at any stage, butthese powers are restricted upon commencement of trial. Only incase the party demonstrates that inspite of a due diligence he hasfailed to raise the issue before commencement of trial, the Courtcan grant such application.24.After hearing the respective parties and upon goingthrough the documents placed on record, in order to decide thecorrectness of the order passed by Civil Judge, Junior Division,Khultabad, I have gone through the amendment application atExhibit-95 filed by defendant No.12 under Order 6 Rule 17 of C.P.C.So far as the amendment of pleadings is concerned, it is governedby order 6 Rule 17 of C.P.C. which reads thus, “The Court may at any stage of the proceedings allow eitherparty to alter or amend his pleadings in such manner and onsuch terms as may be just, and all such amendments shall bemade as may be necessary for the purpose of determining thereal questions in controversy between the parties : SVH 16 6554-20-WP.odtProvided that no application for amendment shall beallowed after the trial has commenced, unless the Court comesto the conclusion that in spite of due diligence, the party couldnot have raised the matter before the commencement of trial.”Though the rule provides that the pleadings could beamended at any stage of the proceedings, however, the proviso tothe rule states that no application for amendment shall be allowedafter the trial has commenced, unless the Court comes to theconclusion that in spite of due diligence party could not have raisedthe matter before commencement of trial. 25.In the application, petitioner has merely stated that thewritten statement has been filed on 19/11/2007. When she got theknowledge about earlier R.C.S. No.173/1967 filed by Hafizabeeagainst Aziz Baig and Isam Baig in October, 2017, she has,thereafter immediately filed application for getting certified copy ofthe judgment and decree along with the written statement filed byAziz Baig and Isam Baig. When she received those copies on13/10/2017 she has filed the application below Exhibit-95. That isthe only statement made regarding due diligence while making theapplication. Due diligence is not an empty formality but it is to bereflected by way of explanation as to what prevented the personseeking amendment from making such application prior tocommencement of trial and what efforts were taken by that persondespite which he could not make the pleadings in the plaint orwritten statement. SVH 17 6554-20-WP.odt26.In the present matter, mere statement has been madeby the petitioner that she came to know about the writtenstatement in the year 2017, and therefore she could not file saidapplication prior to that. In the written statement filed by defendantNo.12 itself the reference is made to the suit filed by Hafizabeenwhich was decreed and the Collector has also effected partition asper the procedure provided under the provisions of law. Though it isclaimed that written statement is filed on behalf of defendant Nos.9to 12 by defendant No.9, however, upon going through the writtenstatement it transpires that signature of the present petitionerappears on the written statement. Title shows that all thedefendants have filed common written statement and each of themhave attested their signatures. Therefore, the story put forward bypetitioner that her father defendant No.9 was looking after the suitand only after his demise she had to take the responsibility of theproceedings, is not supported by the written statement.27.It also needs to be appreciated that all the explanationregarding due diligence, appears to be in the memo of writ petitionand not in the application Exhibit-95 filed before the trial Court. Thelacunae appearing in the application have been filled in by thepetitioner by incorporating pleadings in present writ petition insupport of the reasons due to which she was prevented from filingapplication prior to 2017. It is on the basis of the pleadings in theapplication, the Civil Judge, Junior Division, Khultabad, has rejectedSVH 18 6554-20-WP.odtthe application Exhibit-95. Therefore, in absence of pleadings inrespect of due diligence in the application, the order passed by thetrial Court does not deserve to be interfered. The trial Court hasrightly rejected the application on the basis of contents of theapplication and averments made therein.28.Useful reference can be made to the decision of theSupreme Court in Vidyabai and Others vs. Padmalatha andAnother, [AIR 2009 SC 1433], wherein it is observed that, it isprimary duty of the Court to decide as to whether such amendmentis necessary to decide the real dispute between the parties. Theproviso appended to Order 6 Rule 17 restricts powers of the Court. Itembarks on the exercise of its jurisdiction. The Courts jurisdiction ina case of this nature is limited. Thus, unless the jurisdictional fact asenvisaged therein is found to be existing, the Court will have nojurisdiction to allow the amendment of plaint. Hence, in view of theposition of law that has been settled in the above judicialpronouncement, which is squarely applicable to the present case,the order passed by the trial Court does not deserve to be interferedwith. Accordingly writ petition is dismissed. (MANJUSHA DESHPANDE, J.)SVH