High Court

Legal Reasoning

IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABAD913 WRIT PETITION NO. 2334 OF 2023Vitthal Govind Kaspate And AnotherVERSUSShobhabai Jankiram Bukre And Others...Advocate for the Petitioner : Mr. Gujrathi Pushpak U.Advocate for Respondent No.1 : Mr. Moinpasha Shaikh Farid...CORAM : R. M. JOSHI, J.Dated : July 23, 2024PER COURT :-1.By consent of both sides heard finally at admission stage.2.Petitioners/ plaintiffs in Regular Civil Suit No.32/2014 is aggrievedby rejection of application Exhibit 71 filed under Order 6 Rule 17 of theCode of Civil Procedure for amendment to the plaint. It is the contentionof the plaintiffs in the plaint that defendant No.1 has encroached upon 62R land from the Northern side whereas defendants No.2 to 4 causedencroachment of 15 R land from Southern side. Said suit was decreed byorder dated 17/12/2018 against defendant No.1. In Regular Civil AppealNo.50/2019 order came to be passed on 04/08/2020 whereby RegularCivil Suit No.32/2014 was remitted back to the Trial Court for de novo trial.Even after the commencement of the de novo trial except for defendantNo.1 no other defendant appeared and suit proceeded ex-parte againstthem. Defendant No.1 filed written statement. After framing of issues,suit is for recording of evidence. At this stage application Exhibit 71 isfiled for amendment in the plaint incorporating the fact that out of thesuit property, 59 R land to be encroached upon by defendant No.1 fromPage 1 of 7 Northern side of the plaintiff No.1 and 15 R land is encroached bydefendant Nos.2 to 4 from Southern side of land of plaintiff No.2.3.Learned Counsel for petitioners submits that since the suit land isjointly cultivated by the petitioners/ plaintiffs, it was necessary toexplain that the encroachment caused by defendant No.1 is from theNorthern side of plaintiff No.1 and other defendants causedencroachment from Southern side land of plaintiff No.2. This contentionis opposed by the defendant No.1 on the ground that the application isfiled at belated stage, so also it is barred by limitation as theamendment not being sought after the entry has sought after jointmeasurement being carried on 23/11/2017. Learned Trial Court hasrejected the application by accepting the said submissions.4.Learned Counsel for the petitioner has placed reliance on theJudgment of the Hon’ble Supreme Court in case of Life InsuranceCorporation of India vs. Sanjeev Builders Private Limited,reported in AIR 2022 Supreme Court 4256, wherein theparameters are settled for the allowing / rejecting amendment to thepleadings. Learned Counsel for the respondent submits that theamendment ought to be carried out within three years of themeasurement of the suit property and in view of Section 137 of theLimitation Act such application being not filed within three years isPage 2 of 7 barred by limitation. It is his further submission that due diligence hasnot been shown by the plaintiffs for amendment in the pleadings andthat the amendment will change the nature of the suit. He furthersubmits that though amendment is sought to the pleadings, no prayeris made against defendant No.1.5.The Hon’ble Supreme Court in case of Life InsuranceCorporation of India (Supra) has laid down in paragraph No.70 thecriteria for the purpose of allowing / rejecting the applications foramendment. It is as under : -“70. Our final conclusions may be summed up thus:(i) Order II Rule 2 CPC operates as a bar against asubsequent suit if the requisite conditions forapplication thereof are satisfied and the field ofamendment of pleadings falls far beyond its purview.The plea of amendment being barred under Order IIRule 2 CPC is, thus, misconceived and hencenegatived.(ii) All amendments are to be allowed which arenecessary for determining the real question incontroversy provided it does not cause injustice orprejudice to the other side. This is mandatory, as isapparent from the use of the word “shall”, in the latterpart of Order VI Rule 17 of the CPC.(iii) The prayer for amendment is to be allowed.(i) if the amendment is required for effectivePage 3 of 7 and proper adjudication of the controversybetween the parties, and(ii) to avoid multiplicity of proceedings, provided(a) the amendment does not result in injusticeto the other side,(b) by the amendment, the parties seekingamendment does not seek to withdraw any clear admissionmade by the party which confers a righton the other side and(c) the amendment does not raise a time barredclaim, resulting in divesting of the other side of avaluable accrued right (in certain situations).(iv) A prayer for amendment is generally required to beallowed unless(i) by the amendment, a time barred claim issought to be introduced, in which case the factthat the claim would be time barred becomes arelevant 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 validdefence.v) In dealing with a prayer for amendment ofpleadings, the court should avoid a hypertechnicalapproach, and is ordinarily required to be liberalespecially where the opposite party can becompensated by costs.(vi) Where the amendment would enable the court topin-pointedly consider the dispute and would aid inPage 4 of 7 rendering a more satisfactory decision, the prayer foramendment should be allowed.(vii) Where the amendment merely sought to introducean additional or a new approach without introducinga time barred cause of action, the amendment is liableto be allowed even after expiry of limitation.(viii) Amendment may be justifiably allowed where it isintended to rectify the absence of material particularsin the plaint.(ix) Delay in applying for amendment alone is not aground to disallow the prayer. Where the aspect ofdelay is arguable, the prayer for amendment could beallowed and the issue of limitation framed separatelyfor decision.(x) Where the amendment changes the nature of thesuit or the cause of action, so as to set up an entirelynew case, foreign to the case set up in the plaint, theamendment must be disallowed. Where, however, theamendment sought is only with respect to the relief inthe plaint, and is predicated on facts which are alreadypleaded in the plaint, ordinarily the amendment isrequired to be allowed.(xi) Where the amendment is sought beforecommencement of trial, the court is required to beliberal in its approach. The court is required to bear inmind the fact that the opposite party would have achance to meet the case set up in amendment. Assuch, where the amendment does not result inirreparable prejudice to the opposite party, or divestPage 5 of 7 the opposite party of an advantage which it hadsecured as a result of an admission by the partyseeking amendment, the amendment is required to beallowed. Equally, where the amendment is necessaryfor the court to effectively adjudicate on the mainissues in controversy between the parties, theamendment should be allowed.”6.In the instant case perusal of the record shows that Regular CivilSuit No.32/2014 was decreed on 17/12/2018. Practically the saiddecree is passed as the defendants did not contest the suit. Thus, atthat time no need arose for the plaintiff to carry out any amendment tothe plaint. This material fact has been ignored by the learned TrialCourt while holding that the application has been filed beyondlimitation. The Court has erred in not considering the fact that by virtueof order passed by the First Appellate Court the suit was relegated backfor decision afresh for de novo trial. In such circumstances, it was notopen for the learned Trial Court to reject the application on this ground.7.Apart from this, amendment sought is only clarificatory in nature .Since there are two plaintiffs, it was essential to narrate as to the side ofwhich plaintiffs’ the encroachment has been done by which defendant.The nature of suit does not change by this amendment. No prejudicemuch less any irreparable loss will be caused to the defendants if thePage 6 of 7 amendment is so allowed. It would be open for defendants to resist thiscontention of plaintiff. 8.As far as due diligence is concerned, since suit is directed to betried de novo, and immediately after filing of written statement, theapplication for amendment is moved. In so far as the contention ofdefendant No.1 about there being no prayer made pursuant to theamendment caused by the plaintiff is concerned, the consequence oflack of prayer would be determined by the Trial Court in accordancewith law. This however cannot be a ground for rejecting application foramendment. Thus, by imposing appropriate cost such application canbe allowed. In the facts of the case, cost is determined Rs.1000/-(Rupees one thousand only) payable by plaintiffs to the defendantNo.1.9.In view of the above, the impugned order is set aside. ApplicationExhibit 71 is allowed subject to plaintiff paying cost of Rs.1000/- todefendant No.1.10.Petition stands allowed in above terms. ( R. M. JOSHI, J. )vj gawade/-.Page 7 of 7