High Court
Legal Reasoning
*1* wp1268o20&12456o21 SB COMMONIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.1268 OF 2020Sheshrao Devidas Tonge...PETITIONER(Orig. Plaintiff)-VERSUS-Balu Irba Tonge and others....RESPONDENTS(Orig. Defendants)WITHWRIT PETITION NO.12456 OF 2021Balu Irba Tonge and others....PETITIONER(Orig. Defendants)-VERSUS-Sheshrao Devidas Tonge....RESPONDENT(Orig. Plaintiff)…Shri S.G. Joshi, Advocate for the Plaintiff.Shri A.M. Gaikwad, Advocate for the Defendants.... CORAM : PRAFULLA S. KHUBALKAR, J.DATE : 23rd April, 2025PER COURT :1.Since the impugned orders passed by the Trial Courtarise from the same suit and the parties are the same, therefore, *2* wp1268o20&12456o21 SB COMMONthese two Writ Petitions are decided by this common order andthe parties are referred to by their nomenclature in the suit.2.Heard advocate Shri S.G. Joshi, learned counsel forthe plaintiff and advocate Shri A.M. Gaikwad, learned counselfor the defendants.3.In Writ Petition No.1268/2020, the plaintiff haschallenged the order dated 10.10.2019 passed by the learnedCivil Judge, Junior Division, Loha, District Nanded, on theapplication at exhibit-80 in Regular Civil Suit No.76/2011thereby, rejecting the said application for amendment of the suit.4.In Writ Petition No.12456/2021, the defendants havechallenged the order dated 14.06.2019 passed by the learnedCivil Judge, Junior Division, Loha, District Nanded, on theapplication at exhibit-75 in Regular Civil Suit No.76/2011thereby, rejecting the said application for amendment of theircounter claim. 5.The plaintiff has filed Regular Civil Suit No.76/2011claiming the relief of declaration and permanent injunction withrespect to the agricultural land bearing Gat No.303 situated at *3* wp1268o20&12456o21 SB COMMONMauje Dapshed, Taluka Loha, District Nanded. The defendantshad appeared in the suit and filed their counter claim.6.At the instance of the defendants, an applicationbelow exhibit 43 under Order XXVI Rule 9 of the CivilProcedure Code seeking appointment of the Court Commissionerwas filed on 10.01.2013, which was decided by the Trial Courtby order dated 02.05.2013 thereby, appointing the CadastralSurveyor from the office of the City Surveyor as the CourtCommissioner to measure the suit land and to find outencroachment if any. Pertinent to note, the order directingappointment of the Court Commissioner categorically notes thatin view of the controversy it is necessary to measure the suit landof the plaintiff and the defendants, which will help the Court todecide the original suit and counter claim on merits. This order ofappointment of the Court Commissioner was not challenged byany of the parties and accordingly, the Court Commissionercarried out the measurement.7.On 31.08.2018, the defendants filed an applicationbelow exhibit 75 under Order VI Rule 17 of the Code of CivilProcedure on 31.08.2018 seeking amendment to their counter *4* wp1268o20&12456o21 SB COMMONclaim allegedly based on the measurement carried out by theCourt Commissioner. By way of this proposed amendment, thedefendants have prayed for amendment to their counter claim toincorporate pleadings with respect to subsequent developmentsbased on the Commissioner’s report and to amend prayer clausesincorporating rectification and correction of the document ofSale Deed No.3129 dated 18.12.1974. Thus, the proposedamendments sought by the defendants are two fold in nature, onepart being based on the report of the Court Commissioner and thesecond part is in the nature of correction of the document of saledeed of the year 1974.8.On 26.07.2019, the plaintiff also filed an applicationunder Order VI Rule 17 of the Civil Procedure Code foramendment thereby, proposing to add certain contentions basedon subsequent developments in view of the measurement carriedout by the Court Commissioner. 9.Insofar as the application exhibit-75 filed by thedefendants is concerned, the plaintiff opposed the saidapplication on the ground that trial has already commenced. TheTrial Court rejected the application exhibit 75 by the impugned *5* wp1268o20&12456o21 SB COMMONorder dated 14.06.2019 holding that the counter claim will not bewithin limitation if the prayer of rectification in the sale deed ispermitted and further the proposed amendment is not necessaryfor the purpose of determining the real controversy between theparties.10.As regards the plaintiff’s application for amendmentseeking amendment of the plaint, the defendants stronglyopposed the application on the ground that trial has commencedand the plaintiff was also cross examined. The Trial Court passedthe impugned order dated 10.10.2019 thereby, rejecting theplaintiff’s application exhibit-80 for amendment mainly on theground that the suit was fixed at the stage of evidence and thatthe trial has commenced.11.Shri Joshi, learned counsel for the plaintiff,vehemently submits that the impugned order dated 10.10.2019demonstrates hyper-technical approach of the Trial Court. Hesubmits that by way of the proposed amendment, the plaintiffwants to bring on record the subsequent developments based onthe Commissioner’s report. His main thrust of arguments is thatthe Commissioner was appointed at the instance of the *6* wp1268o20&12456o21 SB COMMONdefendants and the proposed amendments are necessary fordeciding the real controversy involved in the suit. He submitsthat although evidence has started, in view of the fact that thedefendants had also prayed for amendment based on theCommissioner’s report, the Trial Court had adopted perverseapproach in rejecting the application exhibit 80 by onlyconsidering the stage of the civil suit.12.As against this, Shri Gaikwad, learned counsel forthe defendants, strongly opposed the petition filed by theplaintiff. He submits that the plaintiff has proposed to amend theplaint after his cross-examination was over and after thedefendants have disclosed their defence. He submits that theplaintiff has failed to file any amendment immediately after thereport of the Court Commissioner was filed and has waited tillthe completion of his cross-examination and thus, theamendment application does not demonstrate due diligence onthe part of the plaintiff. He submits, on the contrary, theapplication filed by the defendants demonstrate due diligence ontheir part.13.Rival contentions thus fall for my consideration. *7* wp1268o20&12456o21 SB COMMON14.It has to be noted that the plaintiff has filed theapplication for amendment to incorporate subsequent eventsbased on the report of the Court Commissioner. So also, thedefendants also filed the application for amendment to theircounter claim after the report of the Court Commissioner. It ispertinent to note that the Cadastral Surveyor of the City SurveyorOffice was appointed as the Court Commissioner at the instanceof the defendants. Although the evidence in the suit has startedand the plaintiff was cross-examined, considering the fact thatthe plaintiff as well as the defendants filed the applications foramendment based on the Commissioner’s report, it becomesclear that the pleadings based on the Commissioner’s report arerelevant for the purpose of deciding the real controversy betweenthe parties. The very purpose of appointment of the CourtCommissioner, as observed by the Trial Court while passing theorder on the application under Order XXVI Rule 9 of the CivilProcedure Code, was to get the lands of the plaintiff and thedefendants measured which would help the Court to decide theoriginal suit and counter claim on merits. As such, the proposedamendment to incorporate the pleadings based on theCommissioner’s report is necessary for complete and effective *8* wp1268o20&12456o21 SB COMMONadjudication of the controversy involved in the suit and counterclaim.15.Although the plaintiff filed the application foramendment after his cross-examination was over, however,denying him an opportunity to place on record the relevantpleadings will be detrimental. In the peculiar facts of this case,rejection of the plaintiff’s application for amendment onlybecause his cross-examination was over, demonstrates extremelypedantic approach. Further, the proposed amendment based onthe report of the Court Commissioner, could not be termed to beabsence of due diligence on the part of the plaintiff.16.The position of law emanating from the judgment ofthe Honourable Supreme Court in the matter of Life InsuranceCorporation of India vs. Sanjeev Builders Private Limitedand another, 2022 (16) SCC 1 : AIR 2022 SC 4265, need to betaken into consideration. After considering series of judgmentsdealing with the provisions of Order VI Rule 17 of the CivilProcedure Code, the Honourable Supreme Court arrived at finalconclusions, which are mentioned in paragraph No.70, of whichrelevant points are mentioned below:- *9* wp1268o20&12456o21 SB COMMON“70.Our final conclusions may be summed up thus:(i)…..(ii)All amendments are to be allowed which arenecessary for determining the real question incontroversy provided it does not cause injusticeor prejudice to the other side. This ismandatory, as is apparent from the use of theword "shall", in the latter part of Order VI Rule17 of the Code of Civil Procedure.(iii)The prayer for amendment is to be allowed(i) if the amendment is required for effectiveand proper adjudication of the controversybetween the parties, and(ii) to avoid multiplicity of proceedings,provided(a) the amendment does not result ininjustice to the other side,(b) by the amendment, the partiesseeking amendment does not seek to withdrawany clear admission made by the party whichconfers a right on the other side and(c) the amendment does not raise atime barred claim, resulting in divesting of theother side of a valuable accrued right (incertain situations).”17.In the light of these observations of the HonourableSupreme Court, amendments proposed by the plaintiff in theinstant case being necessary for determining the real questions in *10* wp1268o20&12456o21 SB COMMONcontroversy, need to be allowed. As regards the issue of prejudiceand injustice to the defendants, in view of the amendmentproposed, being based on the report of the Court Commissioner,who was appointed at the instance of the defendants, there is noquestion of prejudice to the defendants. Thus, I am of theconsidered view that the amendment application filed by theplaintiff deserves to be allowed.18.In the peculiar facts of this case, in view of theamendment proposed by the defendants, the amendment to theextent of seeking to amend prayer clause of the counter claimwill definitely cause prejudice to the plaintiff as the sameamounts to changing the nature of the suit to claim the timebarred relief. After considering parameters as laid down in theabove referred judgment of the Honourable Supreme Court, I amof the considered view that the amendment proposing toincorporate pleadings based on the Commissioner’s report needto be allowed, however, the second part of amendment seeking toamend the prayer clause for rectification of the sale deed dated18.12.1974, needs to be rejected.19.Since the suit is of the year 2011 with respect to *11* wp1268o20&12456o21 SB COMMONagricultural lands of the parties and further that proceedings inthe suit were stayed by interim order dated 21.01.2020 passed bythis Court in Writ Petition No.1268/2020, it is in the interest ofjustice that the suit and counter claim are decided expeditiously.Hence, I pass the following order:-(a)Writ Petition No.1268/2020 is allowed.(b)The impugned order dated 10.10.2019 passed by thelearned Civil Judge, Junior Division, Loha, District Nanded, inRegular Civil Suit No.76/2011 below application at Exhibit 80 isquashed and set aside.(c)The application for amendment filed by thepetitioner/ plaintiff at exhibit 80 in Regular Civil SuitNo.76/2011 is allowed.(d)Writ Petition No.12456/2021 is partly allowed.(e)The impugned order dated 14.06.2019 passed by thelearned Civil Judge, Junior Division, Loha, District Nanded, onthe application below exhibit 75 in Regular Civil SuitNo.76/2011 is modified to the extent of partly allowing the saidapplication thereby, permitting the defendants to amend their *12* wp1268o20&12456o21 SB COMMONcounter claim by adding proposed paragraph No.7-A. (f)Regular Civil Suit No.76/2011 and the CounterClaim filed by the defendants be decided expeditiously.(g) No order as to costs. kps ( PRAFULLA S. KHUBALKAR, J.)