Sattar Gafoor Sarvaiyya v. Habib Noorulla Khan

Heard learned Counsel for respective parties. {2} cra30211.odt Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 21 An application tendered by the petitioner seeking leave to amend the pleadings has been turned down by the Wakf Tribunal for the reason that the petitioner, by way of tendering application seeking amendment, proposes to change entire set of facts and new facts are sought to be introduced by way of amendment simply because the petitioner has come across new documents. It is also observed by the Wakf Tribunal that the proposed amendment changes complexion of the proceedings. 3 I have perused the application as well as the impugned order. The petitioner, by tendering application seeking amendment, proposes to introduce certain new documents and details in respect of controversy between the parties. The prayer clause is not sought to be amended. It cannot be, therefore, permitted to be contended that the petitioner is seeking any new relief which changes entire complexion of the proceedings. It is also to be noted at this stage that consideration of the application is at initial stage. The opponent-Respondent will have an opportunity to controvert the contentions raised by way of amendment, by filing say. The Courts are expected to take liberal approach in considering the applications seeking amendment to the pleadings. In this context, reference can be made to the judgment in the matter of Revajeetu Builders & Developers Vs. Narayanaswamy & Sons and others, reported in 2009 (6) All M.R. 986. In paragraph 67 of the judgment, the Apex Court has observed thus: {3} cra30211.odt “67 On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.” 4 In my view, the amendment sought is imperative for proper and effective adjudication of the case and since application is tendered at initial stage, it cannot be said that the application is mala fide. Since the other side will have an opportunity to tender reply to the contentions raised by way of amendment, it cannot be said that prejudice, in any manner, would be caused to the other side nor defence of limitation is likely to be defeated. {4} cra30211.odt 5 In the matter of Pankaja Vs. Yellappa (dead) by L.Rs., reported in 2004 AIR (SC) 4102, it has been observed by the Supreme Court that the application seeking amendment of the pleadings should not be disallowed merely because it is opposed on the ground that the same is barred by limitation. On the contrary, the application will have to be considered bearing in mind the discretion that is vested with the Court in allowing or disallowing such amendment . It is well settled that merits of the contentions raised by way of amendment need not be considered at the stage of consideration of the application seeking amendment. 6 Learned Counsel for Respondent No.1 has vehemently opposed the application contending that provisions of Order 6 Rule 17 would not apply to the application. Reliance is placed on the judgment of the Supreme Court in the matter of P.A. Ahammed Ibrahim Vs. The Food Corporation of India, reported in AIR 1999 SC 3033. In the reported matter, an application seeking appointment of arbitrator was sought to be amended. Taking into consideration provisions of Arbitration Act, the Supreme Court has found that the application will not be maintainable. The applicability of the provisions of Code of Civil Procedure to the proceedings under Arbitration Act was also questioned and the said question was a matter of consideration before the Supreme Court. 7 It cannot be controverted that the provisions of Civil Procedure Code are applicable to the proceedings before the Wakf Tribunal. In this context, Section 141 of the Code of Civil Procedure {5} cra30211.odt needs to be considered which lays down that the procedure provided in the Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction. In this context, reliance can be placed on the judgment in the matter of Syed Akbar Syed Nooroddin Vs. Syed Abdul Haq Syed Nooroddin, reported in 2008 (3) Bom.C.R. 860 and in the matter of Deubai Tukaram Pakhare & others Vs. Muktabai Tukaram Pakhare & others, reported in 1999 (Supp.) Bom. C.R. 81. 8 The Full Bench of this Court, in the matter of State of Maharashtra Vs. Sitaram Naraan Patil & others, reported in 2010 (2) Bom.C.R. 366, has also laid down in the context of an application seeking reference under the provisions of Land Acquisition Act as regards applicability of the provisions of the Civil Procedure Code to the proceedings under the Land Acquisition Act. It has been held by the Full Bench that the application seeking amendment to the Reference Application is maintainable taking into consideration provisions of Order 6 Rule 17 of the Code of Civil Procedure. 9 In this view of the matter, the objection raised by Respondent No.1 as regards maintainability of the application seeking amendment to the proceedings deserves to be turned down. 10 For the reasons recorded above, Civil Revision Application is allowed and the order passed by the Wakf Tribunal, Aurangabad on

03.10.2011 below Exhibit-48 in Wakf Application No.15/2010, is quashed and set aside and the application tendered by petitioners at Exhibit-48 {6} cra30211.odt shall be deemed to have been allowed. It is needless to mention that Respondent No.1 shall have liberty to tender reply to the amended application. 11 Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. adb/cra30211 R.M.BORDE JUDGE