High Court
Facts
{1} 26-wp-1802-2020 IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD26 WRIT PETITION NO. 1802 OF 2020Gulab Shaikh Nabi Maheboob...Petitioner VERSUSRamchandra Narayan Patil Through Lrs Venubai Ramchandra Patil And Others...Respondents ….. Mr. Shantaram Dheple, Advocate for the petitionerMr. M.B. Ubale for respondents No. 11 to 13....... CORAM : MANJUSHA DESHPANDE, J. DATE : 24th FEBRUARY, 2025ORDER :1.The petitioner has challenged the order dated31.07.2019 passed by Joint Civil Judge, Junior Division, Jamner,below Exhibit-93 in Regular Civil Suit No. 96 of 2012.2.Petitioner/original plaintiff filed Regular Civil Suit No.96 of 2012 for specific performance of contract againstrespondents/defendants, in respect of the suit property situatedat Pahur Peth, Tq. Jamner, Dist. Jalgaon of Gut No. 767admeasuring 2 Hectare 53 R.3.It is the contention of the petitioner that after filingof the suit notices were issued to respondents and they haveBhagyawant Punde {2} 26-wp-1802-2020filed their written statement. During pendency of the suit,plaintiff filed application under Order 6 Rule 17 of Code of CivilProcedure claiming that though in the plaint he has stated thatplaintiff is in possession on the basis of agreement to sale,however, during the intervening period, after filing of the suit,respondents had forcibly taken possession of the suit land fromthe plaintiff in the year 2014. Therefore, it is necessary to carryout amendment in the plaint making an averment that he haslost possession of the suit land since he was forciblydispossessed by respondents and it is also necessary toincorporate prayer seeking restoration of possession. 4.On filing the application, respondents opposed theapplication contending that application of the plaintiff does notcontain details as to when exactly plaintiff has beendispossessed. The application is bereft of necessary details ofdispossession. Other objection which has been raised byrespondents is that prayer for restoration of possession issubject matter of independent proceeding in view of Section 6 ofSpecific Relief Act, 1963 which contains bar of entertaining suitfor restoration of possession, after expiry of six months from thedate of dispossession. Therefore, prayer of plaintiff seekingBhagyawant Punde {3} 26-wp-1802-2020restoration of possession after delay of four years is not capableof being entertained. 5.Learned Joint Civil Judge, Junior Division, Jamner haspassed order on 31.07.2018 rejecting the application of theplaintiff seeking amendment in the plaint under Order 6 Rule 17,further directing to pay cost of Rs. 1,000/- to the defendants.The application has been rejected on the ground that proposedamendment is based on totally different cause of action. It is notpermissible to merge claim of dispossession in a suit for specificperformance of contract. Both contentions of plaintiff arecontrary to each other. They cannot sustain in same suit. Theproposed amendment will create complications and act asobstacle to decide the issues involved in earlier suit. Properremedy available to the plaintiff is to file suit under Section 6 ofthe Specific Relief Act. In view of alternate and efficaciousremedy available, plaintiff cannot take recourse of provisions ofOrder 6 Rule 17 of CPC. It would amount to take away rightwhich is accrued to defendants by lapse of time. The proposedamendment would introduce totally different, new andinconsistent case as the application is made at later stage of theproceeding. By recording aforesaid finding, application has beenBhagyawant Punde {4} 26-wp-1802-2020rejected.6.It is the contention of learned advocate for thepetitioner that in the plaint itself there was averment made byplaintiff that he is in possession on the basis of agreement tosale and the vendor has executed possession receipt dated07.06.2006 and from that date he is in possession of suit landand is cultivating the said land. The prayer in the suit is forexecution of sale deed on the basis of agreement to sale.Though, the plaintiff has filed suit while he was in possession ofthe suit land, however, during the pendency of the suit he haslost possession, therefore, since subject matter of suit is sameand he is seeking execution of sale deed on the basis ofagreement to sale, subsequent development of dispossession isnecessary to be incorporated in the plaint with prayer forrestoration. The substantive prayer in the suit is for execution ofsale deed on the basis of agreement to sale, therefore, if hesucceeds to get the relief of execution of agreement to sale, hewill have to file separate proceedings for possession. Since, hewas already in possession according to his averment in theplaint, it was not necessary to make a prayer seekingpossession. Due to his dispossession in the intervening period, itBhagyawant Punde {5} 26-wp-1802-2020is necessary to bring the subsequent development ofdispossession and make necessary averment and a prayer in theplaint. The dispossession of the plaintiff cannot be independentsubject matter of suit for restoration of possession. The learnedJoint Civil Judge, Junior Division has committed an error inmaking observation that the appropriate remedy would be filingsuit under Section 6 of Specific Relief Act.Learned advocate for the petitioner places relianceon the judgment in the case of Dela Gurudal Vanjari vs. UddhalGovardhan Rathod, 2012(3) Mh.L.J. 940, wherein it is held that;“16.The interest of the defendant for raising the plea oflimitation can be safeguarded by directing the trial Courtto consider the issue of limitation that would be raisedby the defendant. It is also made clear that theamendment, as proposed by the plaintiff, shall not relateback to the date of the suit and shall be deemed to havebeen incorporated in plaint on the date of presentationof application under Order 6, Rule 17 of the Code of CivilProcedure.”7.Learned advocate for the petitioner further placesreliance on the decision of this Court in the case of Shakuntalaw/o Balasaheb Balsaraf since deceased through Lrs. vs. Ramdass/o Laxman Balsaraf & Ors., 2013(2) ALL MR 298. In similarfacts and circumstances, this Court has allowed the amendmentfor restoration of possession in the suit and held that by allowingBhagyawant Punde {6} 26-wp-1802-2020such amendment nature of the suit will not change and ifamendment is not allowed plaintiff will have to file another suitfor possession. Therefore, to avoid multiplicity of proceedingsamendment of plaint was allowed. 8.Per contra, learned advocate Shri. M.B. Ubale,appearing for respondents No. 11 to 13 submits that delay thathas occurred in filing application has not been explained by theplaintiff. Even the application for amendment of plaint does notcontain specific details as to when plaintiff has lost hispossession. If the amendment is allowed nature of suit itselfwould be changed. Other objection raised by him is that there issubstantive remedy available to the plaintiff in view of Section 6of Specific Relief Act. Since the plaintiff has failed to avail theremedy within limitation of six months as provided under Section6 of Specific Relief Act, the application for amendment in plaintfor the same cause stands barred by limitation. According to himissues are already framed in the suit and thereafter plaintiff hasfiled present application under Order 6 Rule 17. In view ofabove, he submits that learned Joint Civil Judge, Junior Division,Jamner is perfectly justified in passing the order, which does notdeserve any interference. Bhagyawant Punde
Legal Reasoning
{7} 26-wp-1802-20209.In support of his contentions, learned advocate forrespondents places reliance on the judgment of this Court in thecase of Kailash Anupam Khimsiya vs. Shamji Enterprises andothers, 2019(2) Mh.L.J. 168, wherein this Court by relying ondecision of Hon’ble Supreme Court in the case of RevajeetuBuilders and Developers vs. Narayanaswamy and Sons and ors.,(2009) 10 SCC 84 has laid down guidelines to be consideredwhile entertaining the application for amendment under Order 6Rule 17 of CPC. It is held that, amendment should not cause anyprejudice to the other side which cannot be compensatedadequately in terms of money. It is also held that as a generalrule, the Court should decline amendments if a fresh suit on theamended claims would be barred by limitation on the date ofapplication. Therefore, learned advocate for respondents submitsthat this decision is squarely applicable to the facts of thepresent case.Learned advocate for respondents also placesreliance on the judgment in the case of M. Revanna vs.Anjanamma (dead) by L.Rs. And others, 2020(1) Mh.L.J. 143,wherein it is held that leave to amend may be refused if itintroduced totally different, new and inconsistent case, orchallenges fundamental character of suit. Bhagyawant Punde {8} 26-wp-1802-202010.After hearing the parties and after going through thedocuments placed on record along with the impugned order it isevident that there was pleading of the plaintiff that on the basisof agreement to sale, he was in possession. Therefore, in thesuit prayer was made for execution of sale deed on the basis ofagreement to sale. It is stated in the application Exhibit-93 thatsince certain permissions from the revenue officer is necessary,there was no mention about possession of plaintiff. In themeanwhile, because of dispossession of plaintiff by defendants,plaintiff was constrained to file application under Order 6 Rule 17to incorporate subsequent developments in the suit. Sincesubject matter of suit is already pending before Civil Court, itwas necessary to file application for amendment in the pleadingsto bring subsequent development on record those have takenplace during the pendency of the suit. Accordingly, he has filedapplication under Order 6 Rule 17 of CPC. 11.In a catena of judicial pronouncements the Hon’bleApex Court has held that that applications for amendment haveto liberally construed and the Court should not adopt hyper-technical approach while considering the amendment application.Amendments are to be liberally allowed in order to avoidBhagyawant Punde {9} 26-wp-1802-2020multiplicity of proceedings. The judgment of this Court which isrelied upon by petitioner in the case of Dela Vanjari (supra)takes into consideration the relevant judicial pronouncementswhich have laid down foundation of construction of Order 6 Rule17 of CPC. A useful reference can be made to para 67 of thedecision in Revajeetu Builders (supra), which reads thus;“67.On critically analyzing both the English and Indiancases, some basic principles emerge which ought to betaken into consideration while allowing or rejecting theapplication for amendment.(1) Whether the amendment sought is imperative forproper and effective adjudication of the case?(2)Whether the application for amendment is bonafide or mala fide?(3)The amendment should not cause such prejudiceto the other side which cannot be compensatedadequately in terms of money;(4)Refusing amendment would in fact lead toinjustice or lead to multiple litigation;(5)Whether the proposed amendmentconstitutionally or fundamentally changes the natureand character of the case? And(6)As a general rule, the Court should declinedamendments if a fresh suit on the amended claimswould be barred by limitation on the date ofapplication.”12.Applying above guidelines which have been laid downby Hon’ble Supreme Court in above case, in my opinion, presentcase is squarely covered by the above guidelines. TheBhagyawant Punde {10} 26-wp-1802-2020dispossession of the plaintiff during pendency of the suit isnecessary to be incorporated in the plaint. The application foramendment filed by plaintiff is bona fide application and it wouldnot cause any prejudice to the other side, since other side is atliberty to file say to the amended plaint. The proposedamendment does not change the nature of suit. The prayer ofthe plaintiff is for execution of sale deed on the basis ofagreement to sale. Therefore, even if the amendment is allowed,the nature and character of suit is not going to change. 13.Learned Joint Civil Judge, Junior Division, Jamner hascommitted an error by observing that, proposed amendment isbased on totally different cause of action. Since trial has not yetcommenced, necessary issues can be framed and parties are atliberty to lead necessary evidence in support of the amendment.In fact, in order to avoid multiplicity of proceedings, amendmentis required to be allowed. Therefore, order passed by Joint CivilJudge, Junior Division, Jamner below application Exhibit-93deserves to be quashed and set aside. 14.In the result, I proceed to pass following order:ORDER(i)Writ Petition is allowed.Bhagyawant Punde {11} 26-wp-1802-2020(ii)Order dated 31.07.2019 passed by Joint Civil Judge,Junior Division, Jamner, below Exhibit-93 in Regular CivilSuit No. 96 of 2012 is hereby quashed and set aside,subject to payment of cost of Rs. 10,000/- to be paid todefendants in the Trial Court before trial proceedsfurther.(iii)Application Exhibit-93 is allowed.(iv)Writ petition stands disposed of. (MANJUSHA DESHPANDE, J.) Bhagyawant Punde