High Court
Legal Reasoning
769.18wp(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.769 OF 2018Savitri w/o Digamber More,Age: 44 years, Occu.: Household,R/o. Dharmabad, Tal. Dharmabad,Dist. Nanded….PETITIONER (Orig. Plaintiff)VERSUS1.Bapurao s/o Irba Kadam (Dead), Through Resp No.22.Lakshmibai w/o Bapurao Kadam,Age: 65 years, Occu: Nil.R/o. Chikna, Tal. Dharmabad,Dist. Nanded3.Kantabai w/o Niwarti Kausale,Age: 48 years, Occu: Household,R/o Bhawani Nagar, Khandhar,Tal. Khandhar, Dist. Nanded ….RESPONDENTS (Orig. Def. Nos.1-3) ….Ms Khushi Varma, Advocate h/f Mr R. R. Kazi, Advocate for petitioner Mr H. I. Pathan, Advocate for respondent No.3 CORAM : PRAFULLA S. KHUBALKAR, J. RESERVED ON : 23rd June, 2025PRONOUNCED ON : 07th July, 2025JUDGMENT :-1.Heard. Rule. Rule made returnable forthwith. Heardfinally by consent of the parties. 769.18wp(2) 2.Heard Advocate Ms. Khushi Varma, holding for AdvocateMr R. R. Kazi, learned counsel for the petitioner and Advocate Mr H.I. Pathan, learned counsel for respondent No.3.3.The petitioner has challenged the order dated 17/08/2017,passed by the District Judge-1, Biloli, Dist. Nanded, in Regular CivilAppeal No.34/2011 on an application under Order VI Rule 17 readwith Order I Rule 10 of the Code of Civil Procedure for amendment ofthe plaint and addition of necessary party. 4.The petitioner is the original plaintiff, who had filedSpecial Civil Suit No.8/2010 for partition and separate possession,claiming 1/3rd share in the suit property, described in the Schedule ‘A’enclosed to the plaint. The petitioner/plaintiff had also sought aninjunction for restraining the defendants in the suit from creating anythird party interest in the suit property. This suit was filed on07/04/2010, in which, defendant Nos.1 to 3 appeared and filed theirwritten statement on 20/09/2010. Amongst other contentions, thedefendants raised specific contention that defendant Nos.1 and 2 hadexecuted their wills separately on 19/03/2010 and bequeathed theirproperties to their grand children, namely, Tejaswini Kausale andDigvijay Kausale, who are the daughters of defendant No.3. By 769.18wp(3) judgment and order dated 25/07/2011, Regular Civil Suit wasdismissed with costs. The plaintiff, thereafter filed Regular CivilAppeal No.34/2011 before the District Judge-1, Biloli, Dist. Nanded.During the pendency of the appeal, the plaintiff filed application underOrder VI Rule 17 read with Order I Rule 10 of the Code of CivilProcedure for amendment of plaint and addition of party defendant.By way of proposed amendment, the plaintiff sought to amend theplaint to challenge the will dated 19/03/2010 (Exhibit 76) made infavour of Tejaswini, in respect of suit properties, to be invalid andvoid, and to array Tejaswini as party defendant. This application cameto be rejected, against which, the instant petition has filed. 5.Advocate Ms Khushi Varma, learned counsel appearingfor the petitioner submits that the impugned order is erroneous, sincethe Appellate Court failed to consider that, in view of death ofdefendant No.1/Baburao Irba Kadam, the will has taken its effect andin view of the controversy involved, the will dated 19/03/2010 (Exhibit76) needs to be challenged for effective and complete adjudication ofthe controversy involved in the suit. She submits that the will isexecuted in favour of Tejaswini and therefore, she is required to beadded as party defendant No.4 in the suit. She vehemently submitsthat the proposed amendment is necessary to avoid multiplicity of 769.18wp(4) proceeding and it will resolve the controversy once and for all. Shefurther submits that the position of law is well settled that amendmentcan be allowed at any stage and in support of her submissions, sherelies on the judgments in the matters of Life Insurance Corporationof India Vs. Sanjeev Builders Private Limited and another,reported in 2022 SCC OnLine SC 1128; Mathai Samuel and othersVs. Eapen Eapen (dead) By LRS and others, reported in (2012) 13SCC 80 and in unreported judgment of the Hon’ble Supreme Court inthe matter of Dinesh Goyal @ Pappu Vs. Suman Agarwal (Bindal)and others [Special Leave Petition (Civil) No.30324/2019].6.As against this, Advocate Mr Pathan, learned counsel forrespondent No.3 strenuously submits that the petition is devoid ofsubstance and amendment of plaint cannot at all be allowed during thependency of the Regular Civil Appeal. He submits that the RegularCivil Suit filed by the plaintiff/petitioner is decided by the Trial Courtby recording categorical findings about ownership of defendant No.1and his status as a full owner of the property. He submits that the suitproperties which were allotted to defendant No.1 in the partitionbecame his separate property, and in view of this, defendant No.1 wasempowered to execute a will. He also vehemently submits thatdefendant No.1 has raised a defence based on the registered will in the 769.18wp(5) written statement and the plaintiff has failed to raise any challenge atthe relevant stage. It is further submitted that, although thepetitioner/plaintiff has levelled allegations about the will beingexecuted under some influence, pertinently, she failed to raisechallenge to the will during the lifetime of defendant No.1, who couldhave been examined as a witness to test the allegations of influence. Itis, therefore, submitted that the application for amendment after thedecision of the suit and during the pendency of Regular Civil Appealdefinitely changes the nature of the suit and needed to be rejected. He,thus, supports the impugned order. 7.The rival contentions, thus, fall for my consideration.8.It has to be noted that the respondents/defendants havefiled their written statement on merits, taking a specific stand withrespect to the suit property and also disclosing the details of the will(Exhibit 76). The suit was contested and decided on merits and theparties are now contesting before the Appellate Court. Theplaintiff/petitioner has proposed to amend the plaint at this stage byraising challenge to the registered document of will based on certainallegations of execution of the will being under influence andmisrepresentation of the parties. The plaintiff/petitioner has alsoproposed to add Tejaswini as party defendant No.4, in whose favour 769.18wp(6) the property is bequeathed by the said will (Exhibit 76). The proposedamendment to the plaint raising challenge to the will, in the light offindings of the Trial Court in the decided civil suit, will definitelychange the nature of the suit. It has to be noted that, in view of thedefence set up by the defendants, parties have laid evidence and theTrial Court has rendered its findings. As such, permitting the plaintiffto amend the suit by way of proposed amendment will cause prejudiceto the rights of the defendants.9.It is crucial to note that the defendant No.1 has alreadytaken a stand in the written statement that he has executed theregistered will dated 19/03/2010 (Exhibit 76). In view of this writtenstatement, the plaintiff could have raised challenge to the will by filingappropriate application for amendment during the pendency of the suit.However, the plaintiff has not raised any challenge to the will duringthe pendency of the suit and the proposed amendment during thependency of the Regular Civil Appeal, demonstrate that the plaintiffhas not acted with due diligence. It is, thus, clear that the plaintiff wasaware about registered document of will in favour of Tejaswini,however, the plaintiff chose to allow the suit to be decided on merits,without raising any challenge to the will. The proposed amendment tothe plaint cannot be permitted in the peculiar facts of this case. The 769.18wp(7) contention of the petitioner that the challenge to the will could beraised only after death of defendant No.1, since the cause of actionarose after his death, is not appealing. It has to be noted that thepetitioner/plaintiff was aware about existence of a registered documentof will and could have raised the challenge during the lifetime of thetestator, who could have been examined as witness for testing thegenuineness of the document. The application for amendment doesnot mention any reasons for not seeking amendment of plaint duringpendency of the suit. As such, the submissions in this regard are notacceptable. 10.The position of law as laid down in the judgment of LifeInsurance Corporation of India (supra) that amendment can beallowed at any stage is no more res integra, however, it is alsoreiterated and held that an amendment which changes the nature of thesuit or an amendment, by which other side loses the valid defence,cannot be permitted, as laid down in the same judgment. The positionof law laid down by the Hon’ble Supreme Court in the matter of LifeInsurance Corporation of India (supra) and Dinesh Goyal @Pappu (supra) is not disputed, however, in my respectful opinion,these judgments are of no assistance to the petitioner in this case. Thereliance placed on the judgment of Mathai Samuel and others 769.18wp(8) (supra), which deals with the issue of essential conditions of a will isalso not disputed. On consideration of the position of law with respectto provisions of Order VI Rule 17 of the Code of Civil Procedure,particularly, the proviso dealing with the aspects of ‘due diligence’, Iam of the considered opinion that amendment to the plaint proposed bythe petitioner at the stage of Regular Civil Appeal cannot be permitted.11.A perusal of the impugned order shows that the TrialCourt has given due consideration to the contentions raised by theparties and has passed a well reasoned order. The Trial Court has alsoduly considered the submission about alleged cause of action to theplaintiff after the death of defendant No.1. It is rightly observed thatthe application for amendment at the stage of Regular Civil Appeal iswithout support of any justifiable reasons. The impugned order, thus,appears to be well reasoned and needs no interference. 12.In the light of above mentioned factual and legal aspects,the instant petition is meritless and it deserves to be dismissed, andaccordingly, the writ petition is dismissed. No order as to costs. 13.Rule is discharged. (PRAFULLA S. KHUBALKAR, J.)sjk
Legal Reasoning
769.18wp(9) AFTER PRONOUNCEMENT14.After the judgment was pronounced, learned counsel forthe petitioner requested for continuation of the interim relief, whichwas granted by order dated 01/10/2018 for a period of eight weeks.15.Considering the fact that the interim relief was operatingduring the pendency of the petition, the interim relief is continued for afurther period of eight weeks from today. (PRAFULLA S. KHUBALKAR, J.)sjk