High Court

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wp-9793-2017.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 9793 OF 20171.Ramdas Sitaram ZawareAge: 64 Years, Occu: Agri.R/o: Walki, Taluka and District Ahmednagar2.Pandurang Sitaram ZawareAge: 69 Years, Occu: Agri. R/o: Vasunde, Taluka Parner.District Ahmednagar3.Kisan Jagannath DateAge: 54 Years, Occu: Agri. R/o: Vasunde, Taluka Parner, District Ahmednagar...PetitionersVersusNamdao Kondiba ZawareSince deceased Per L.Rs.1-A.Sarubai Namdeo ZawareAge: 66years, Occu: Household, R/o: Vasunde, Taluka Parner, District Ahmednagar1-B.Chandrakala Balasaheb RahokaleAge: 48 years, Occu: Household, R/o: Wadgaon Savtal, Taluka Parner, District Ahmednagar1-C.Dadabhau Namdeo ZawareAge: 45 years, Occu: Agriculture, R/o: Mandve Khurd, Taluka Parner, District Ahmednagar1-D.Shirish Namdeo ZawareAge: 40 years, Occu: Agriculture, R/o: Vasunde, Taluka Parner, District Ahmednagar1-E.Charushila Ramdas Pardhi wp-9793-2017.odt(2)Age: 26 years, Occu: Household, R/o: Vasunde, Taluka Parner, District Ahmednagar...Respondents...Advocate for Petitioners : Mr. S.S. BoraAdvocate for Respondent Nos.1A to 1E : Mr. V.D. Sonawane & Mr. A.V.Sonawane... CORAM : S. G. CHAPALGAONKAR, J. RESERVED ON : AUGUST 05, 2025PRONOUNCED ON : AUGUST 08, 2025JUDGMENT :-1.Rule. Rule made returnable forthwith. Heard finally withconsent of parties.2.The petitioners/original defendants impugns order dated10.07.2017 passed by learned Civil Judge Junior Division, Parner inRegular Civil Suit No.485 of 2008 thereby allowing application belowExhibit-43 permitting plaintiff to amend the plaint.3.The respondent/plaintiff instituted Regular Civil SuitNo.485 of 2008, seeking relief of perpetual injunction in respect ofsuit property bearing Gat No.1420. The plaintiff has further soughtdeclaration that sale deed executed by defendant no.2 in favour ofdefendant no.3 is not binding on his rights. It is contention ofplaintiff that his father namely Kondiba Zaware purchased suit landfrom father of defendant nos.1 and 2 under registered sale deed dated10.02.1955. However in sale deed, Survey No.466/7B is wronglymentioned instead of land Survey No.467/7B. According to plaintiff, wp-9793-2017.odt(3)his father was continued in possession of suit land till his death.However, defendant no.2 sold northern side half portion of suit landto defendant no.3 and defendant no.1 is attempting to sale southernhalf portion of suit land to third party. Hence, cause of action arose tofile the suit. 4.The petitioners who are defendants appeared before theTrial Court in response to suit summons contending that SurveyNo.467/7B was converted into Gat No.1420 during implementation ofconsolidation scheme in the year 1975. The name of defendants’father was recorded as owner of suit property and after his death inthe year 1985, Mutation Entry No.1025 has been recorded enteringname of defendant nos.1 and 2. According to them, present suit isfiled only with an intention to harass the defendants.5.In pursuance of pleadings, issues were framed. Theplaintiff recorded his evidence. Thereafter, plaintiff filed anapplication below Exhibit-43 under Order VI Rule 17 of CivilProcedure Code seeking permission to amend the plaint andincorporate relief of declaration of ownership in respect of suitproperty. The application was opposed by petitioners/defendants.However, the Trial Court allowed the application vide impugned orderdated 10.07.2017. Hence, this writ petition.6.Mr. Bora, learned advocate appearing for petitionersassails the order of Trial Court on the ground that application for wp-9793-2017.odt(4)amendment has been allowed after commencement of trial withoutconsidering the effect of proviso under Rule 17 of Order VI of CivilProcedure Code. He submits that plaintiff/respondent failed to averthat inspite of due diligence, he could not have sought amendmentbefore commencement of trial. Mr. Bora would submit that powers ofCourt to permit amendment at any stage of proceeding has beencurtailed by proviso. However, the impugned order is passed withoutgiving due importance to legislative intent. In support of hiscontentions, he relies upon the observations of Hon’ble SupremeCourt in case of M. Revanna Vs. Anjanamma (Dead) by L.Rs. And Orsreported in (2019) 4 SCC 332.7.Per contra, Mr. Sonawane, learned advocate appearingfor respondents would submit that the proposed amendment seeks tointroduce the claim for declaration of ownership without addinganything in the pleading. According to him, necessary averments arealready made in the plaint. However inadvertently, the relief ofdeclaration was not sought. He would submit that although provisoto Rule 17 curtails absolute discretion of Court to some extent toallow amendment at any stage, the amendment can be allowed onceit is found necessary for determining the real controversy between theparties without causing prejudice or injustice to other-side. He wouldsubmit that the amendment sought was necessary to avoidmultiplicity of litigation. In support of his contention, he relies upon wp-9793-2017.odt(5)observations of Hon’ble Supreme Court in case of Abdul Rehman andAnother Vs. Mohd. Ruldu and Others reported in (2012) 11 SCC 341.8.Having considered submissions advanced and perusal ofrecord tendered into service before this Court, it can be observed thatrespondent/plaintiff instituted suit for relief of perpetual injunctionagainst defendant no.1 and relief of declaration that sale deedexecuted by defendant no.2 in favour of defendant no.3 is not bindingon the right of plaintiff. The plaintiff asserted ownership of landSurvey No.467/7B (Gat No.1420) on the basis of registered sale deeddated 10.02.1955 executed by father of defendants i.e. SitaramZaware. The defendants by filing written statement refuted plaintiff’sclaim. The suit proceeded on the basis of aforesaid pleadings. Theevidence of plaintiff no.1 was recorded wherein he admitted that hisfather is in possession of land Survey No.466 since the date ofexecution of sale deed. The application below Exhibit-43 seekingamendment of plaint was filed at the stage when evidence of plaintiffno.1 was over. In this background, it is apposite to make reference toguidelines laid down by Hon’ble Supreme Court in case of LifeInsurance Corporation of India Vs. Sanjeev Builders Private Limitedreported in AIR 2022 SC 4256. In para 70, the final conclusions arerecorded after considering various judgments on aforesaid aspectwhich reads thus :“70.Our final conclusions may be summed up thus: wp-9793-2017.odt(6)(i) Order II Rule 2 CPC operates as a bar against a subsequentsuit if the requisite conditions for application thereof aresatisfied and the field of amendment of pleadings falls farbeyond its purview. The plea of amendment being barredunder Order II Rule 2 CPC is, thus, misconceived and hencenegatived.(ii) All amendments are to be allowed which are necessary fordetermining the real question in controversy provided it doesnot cause injustice or prejudice to the other side. This ismandatory, as is apparent from the use of the word "shall", inthe latter part of Order VI Rule 17 of the CPC.(iii) The prayer for amendment is to be allowed(i) if the amendment is required for effective and properadjudication of the controversy between the parties, and(ii) to avoid multiplicity of proceedings, provided (a) theamendment does not result in injustice to the other side,by the amendment, the parties seeking amendment does notseek to withdraw any clear admission made by the partywhich confers a right on the other side and(c) the amendment does not raise a time barred claim,resulting in divesting of the other side of a valuable accruedright (in certain situations).(iv) A prayer for amendment is generally required to beallowed unless(i) by the amendment, a time barred claim is sought to beintroduced, in which case the fact that the claim would betime barred becomes a relevant factor for consideration,(ii) the amendment changes the nature of the suit,(iii) the prayer for amendment is malafide, or(iv) by the amendment, the other side loses a valid defence. wp-9793-2017.odt(7)(v) In dealing with a prayer for amendment of pleadings, thecourt should avoid a hypertechnical approach, and isordinarily required to be liberal especially where the oppositeparty can be compensated by costs.(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering amore satisfactory decision, the prayer for amendment shouldbe allowed.(vii) Where the amendment merely sought to introduce anadditional or a new approach without introducing a timebarred cause of action, the amendment is liable to be allowedeven after expiry of limitation.(viii) Amendment may be justifiably allowed where it isintended to rectify the absence of material particulars in theplaint.(ix) Delay in applying for amendment alone is not a ground todisallow the prayer. Where the aspect of delay is arguable, theprayer for amendment could be allowed and the issue oflimitation framed separately for decision.(x) Where the amendment changes the nature of the suit orthe cause of action, so as to set up an entirely new case,foreign to the case set up in the plaint, the amendment mustbe disallowed. Where, however, the amendment sought isonly with respect to the relief in the plaint, and is predicatedon facts which are already pleaded in the plaint, ordinarily theamendment is required to be allowed.(xi) Where the amendment is sought before commencementof trial, the court is required to be liberal in its approach. Thecourt is required to bear in mind the fact that the oppositeparty would have a chance to meet the case set up inamendment. As such, where the amendment does not resultin irreparable prejudice to the opposite party, or divest the wp-9793-2017.odt(8)opposite party of an advantage which it had secured as aresult of an admission by the party seeking amendment, theamendment is required to be allowed. Equally, where theamendment is necessary for the court to effectively adjudicateon the main issues in controversy between the parties, theamendment should be allowed. (See Vijay Gupta v. GagninderKr. Gandhi and Ors., 2022 SCC OnLine Del 1897): (AIROnline2022 Del 1797).”9.The general principle that all amendments are to beallowed which are necessary for determining the real question incontroversy remains as it is. Although proviso (vi) would put somefetters on powers of Court, generally amendments are to be allowedwhere it is intended to rectify the absence of material particulars inthe plaint, in such cases delay in applying the amendment is not aground to disallow the prayer. Further where amendment is soughtonly with respect to relief in plaint and is predicted on facts which arealready pleaded in plaint, ordinarily the amendment is required to beallowed. 10.In present case, the amendment is proposed only forpurpose of adding relief of declaration as to ownership. Pleadings inrespect of such claim are already present in plaint. The plaintiff is notseeking to bring on record any new material or new pleadings thatwould prejudice the right of defendants. It is true that in applicationfor amendment, no explanation is given as to why such relief was notsought at earlier point of time or before commencement of trial or wp-9793-2017.odt(9)even there is no specific contention as to observance of due diligence.However, fact remains that for adjudication of dispute between theparties, the proposed amendment is necessary and even same isrequired to be permitted to avoid multiplicity of litigation.11.Although Mr. Bora, learned advocate appearing forpetitioners relies upon observations of Hon’ble Supreme Court in caseof M. Revanna (supra), the principle of law that satisfaction of TrialCourt regarding necessity of amendment to effectively adjudicate thedispute between the parties is important. It is not shown bypetitioners as to how allowing the amendment would prejudice theirrights. Apparently, the nature of suit is not changed. In that view ofmatter, the discretion exercised by Trial Court appears to be in tunewith the law laid down by Hon’ble Supreme Court in case of LifeInsurance Corporation of India (supra).12.In result, writ petition sans merit, hence dismissed.13.Rule is discharged.(S.G. CHAPALGAONKAR, J.)Mujaheed//