High Court

Legal Reasoning

WP-11454-23.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.11454 OF 20231. Shri Karbhari Waman Kudnar, Age: 72 years, Occu: Retired R/o. Plot No.51B, Behind Devi Mandir, Nirmal Nagar, Ahmednagar 4140012. Sou. Sushila Karbhari Kudanar, Age: 62 years, Occu: Household, R/o. Plot No.51B, Behind Devi Mandir, Nirmal Nagar, Ahmednagar 414001 ....PETITIONER(Orig. Defendants)VERSUSShri Renukamata Multi-State Co-op. UrbanCredit Society Limited, Ahmednagar,Main branch, Renuka Bhavan Pipeline Road,Ahmednagar through its representatives.Mr. Harishchandra Ambadas More,Age: 50 years, Occu: Service R/o. RenukaBhavan, Ekvira Chowk, Pipeline Road,Savedi, Ahmednagar….RESPONDENT (Orig. Plaintiff)….Mr. R. F. Totala, a/w Mr. V. S. Kabra h/for Mr. S. V. Lohiya, Advocate for petitionersMr. L. B. Palod, Advocate for respondent….CORAM: S. G. CHAPALGAONKAR, J.RESERVED ON21.07.2025PRONOUNCED ON:29.07.2025JUDGMENT :- 1.Rule. Rule made returnable forthwith, heard finally byconsent of parties. 2.The petitioners/original defendants impugns order dated12.07.2023 passed by learned Civil Judge Senior Division, Ahmednagar 1 of 6 (( 2 ))WP-11454-23in Regular Civil Suit No.01 of 2022, whereby petitioners’ prayer seekingamendment in written statement has been rejected. (Hereinafter parties arereferred by their original status for the sake of convenience and brevity)3.The R.C.S. No.01 of 2022 has been instituted by respondent-Bank seeking relief of possession of suit house and recovery of rent amountof Rs.4,40,000/- from petitioners / defendants. 4.Plaintiff-Bank contends that it purchased suit house videregistered sale deed dated 02.11.2019. The name of Bank has been mutatedin record of rights. Later on, defendants requested for continuation of theirpossession on rent basis so also agreed to execute lease agreement.However, they failed to do so and also refused to pay rent and deliverpossession to plaintiff. 5.Defendants appeared in suit, filed written statement andadmitted having obtained loan of Rs.25,00,000/- (Rs. Twenty Five Lac)from plaintiff-Bank and mortgaged suit property by way of security.Defendants further contends that initially they deposited loan installments;however, because of huge business losses, they could not depositinstallments and compromised with plaintiff-Bank. As per compromise,they sold out suit property to plaintiff-Bank, but plaintiff-Bank failed toissue ‘No Objection Certificate’ as already defendants have specificallydenied plaintiff’s theory of lease agreement. In last paragraph of written 2 of 6 (( 3 ))WP-11454-23statement, it is contended that if plaintiff issues No Objection Certificate,defendants are ready to handover possession. 6.Pursuant to pleadings of parties, learned Trial Court framedissues. At this stage, defendants filed application seeking amendment inwritten statement. In paragraph Nos.5 and 6, defendants seek to replacefigure of loan amount of Rs.25,00,000/- (Rs. Twenty Five Lac only) withRs.16,00,000/- (Rs. Sixteen Lac only). Similarly, they want to introducecontention that they were induced to execute sale deed of suit property infavour of plaintiff-Bank, or subjected to fraud and misrepresentation. Theaforesaid amendment was opposed by plaintiff. Learned Trial Court rejecteddefendant’s application vide impugned order dated 12.07.2023, observingthat allowing amendment would result into withdrawal of admissions inwritten statement and introduction of entirely new case. 7.Mr. R. F. Totala, learned Advocate appearing for petitionersvehemently submits that amendment sought to be introduced is necessary tounfold true and correct facts of case. The written statement filed on behalfof petitioners was drafted inconsistent to their instructions and same is resultof mistake on the part of earlier Advocates. Mr. Totala urges that merelybecause application for amendment is filed belatedly it cannot be rejected.Mr. Totala, after taking this Court through original written statement andproposed amendment, submits that neither there is withdrawal of admission 3 of 6 (( 4 ))WP-11454-23and nor is amendment inconsistent to original pleadings, but learned TrialCourt drew erroneous conclusions. 8.Per contra, Mr. L. B. Palod, learned Advocate appearing forRespondent supports impugned order and submits that once trial hascommenced, there is no reason to entertain application for amendment inwritten statement and no valid grounds are made out for allowing the same.In support of his contentions, he relies upon judgment of Supreme Court incase of Life Insurance Corporation of India Vs. Sanjeev Builders PrivateLtd., reported in 2023 (2) ALL MR 333.9.Having considered submissions advanced, it can be observedthat plaintiff has approached Trial Court seeking decree of possession inrespect of suit house property on the basis of registered sale deed dated02.11.2019 executed by defendants. Petitioners/defendants filed writtenstatement at Exhibit-15 and admitted execution of sale deed in pursuance tocompromise as regards to loan transaction of Rs.25,00,000/-. The onlygrievance of petitioners is that they were assured issuance of No ObjectionCertificate as regards to loan. However, without adhering to promise, theywere made to execute sale deed. In last paragraph of their written statementthey specifically admitted that if No Objection Certificated is issued to themas to loan amount, they are ready to handover possession of suit property. 4 of 6 (( 5 ))WP-11454-2310.The perusal of proposed amendment would show thatpetitioners want to replace loan amount from Rs.25,00,000/- (Rs. TwentyFive Lac only) to Rs.16,00,000/- (Rs. Sixteen Lac only) and also want tointroduce case of fraud and misrepresentation. Perusal of proposedamendment would definitely suggest that petitioners want to bring on recordnew defences, some of which are inconsistent with their original pleadings.Further, such amendment is sought when matter has already reached at thestage of evidence. 11.In this background, reference can be made to observations/guidelines laid down by Hon’ble Supreme Court in case of Life InsuranceVs. Sanjeev (Supra), particularly in paragraph No.70, wherein it is statedthat if amendment is required for effective and proper adjudication ofcontroversy between the parties or to avoid multiplicity of proceeding ordoes not amount to withdrawal of admission made by party has to beallowed. However, when amendment changes nature of suit or attempts toset up entirely new case, it shall not be allowed. 12.In present case, although petitioners want to introduce somepleadings which are inconsistent with original pleadings, it does not changenature of defence in written statement. Petitioners are not denyingexecution of sale deed; however, they want to explain circumstances leadingto execution of sale deed. Even in original written statement, they raised 5 of 6 (( 6 ))WP-11454-23similar type of defence. However, by way of amendment, they want toelaborate the same by introducing specific wordings as regardsinducement/fraud exercised upon them. In light of parameters of law laiddown by Hon’ble Supreme Court, amendments are to be allowed which arenecessary for determining real question in controversy. Further,amendments in written statement are to be liberally allowed. Althoughpetitioner wants to introduce additional or new approach to his defence orintends to rectify absence of material particulars in written statement merelyon the ground of delay amendment cannot be rejected. 13.In that view of the matter, learned Trial Court has committederror while observing that defendants want to erase contentions in writtenstatement and want to put up entire new case. 14.In result, Rule made absolute in terms of prayer clause ‘B’.Eventually, Application Exhibit-39 is allowed. Amendment to be carriedout within a period of four (04) weeks from today. [ S. G. CHAPALGAONKAR, J. ] HRJadhav 6 of 6