IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Writ Petition No. 291 of 2012
Decided On: 04.07.2013
Kamlesh and Ku. Anita
Vs.
Kalyan and Atul Vishnu Dharmadhikari
Hon’ble Judges/Coram: A.P. Bhangale, J.
Citation: 2013(6) ALLMR 537.
1. Rule returnable forthwith. Heard finally by the consent of the learned Counsel for the respective parties. The petitioners had instituted Regular Civil Suit No. 742 of 1996 in the Court of Civil Judge (Jr. Dn.), Nagpur for the relief of declaration and permanent mandatory injunction against the respondents in respect of the suit property bearing plot no. 51, Khasra No. 25/1, 26/2, 27/1 and 27/4, Mauza Gadga, Gokulpeth, Nagpur during pendency of the suit. During pendency of the suit, respondent nos. 1 to 3 sold the property to respondent no. 4 without permission from the trial Court. Respondent no. 4 was also impleaded as a necessary party in the proceedings as the petitioner is interested in claiming the same reliefs against the added defendant in the pending suit as title of the defendants under the alleged Sale deed dated 28.03.1939 to the suit property is under challenge as forged, illegal and bogus. Thereby the added defendant, as a transferee-pendente lite, has no valid and legal title to the suit property. The grievance of the petitioner is that the trial Court had rejected the application for amendment in the plaint by the order impugned dated 13.10.2011. The trial Court erred to believe that the petitioners are claiming any new relief against the added defendant.
2. Learned Counsel for the respondent in terms of the law laid down by the Apex Court in the case of Shiv Gopal Sah Alias Shiv Gopal Sahu reported in MANU/SC/1672/2007 : (2007) 14 SCC 120 submitted that unless satisfactory explanation is given by the plaintiff, the amendment could not be allowed. The learned counsel has drawn my attention to Para 12 of the said Judgment, which is reproduced herein under:-
12. It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time. However, for that there had to be a valid basis made out in the application and first of all there had to be bona fides on the part of the plaintiffs and a reasonable explanation for the delay. It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by the lapse of time. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the amendment application.
3. Learned Counsel for the petitioner relied upon the observations in Pankaja and another vs. Yellappa (Dead) by L.Rs. and Others, MANU/SC/0590/2004 : 2004 (4) Mah. LJ. 488 (SC). The Apex Court observed thus:
13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of the period of limitation prescribed in law, can the court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments?
14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.
4. It cannot be disputed that ordinarily all amendments ought to be allowed, which are essential for to determine the real controversy in the suit. The precaution for the Court must be to see that the proposed amendment should not materially alter/vary/annul the substantive relief claimed in the plaint and in other words, it should not be a substitute for the original cause of action on which the original suit has been filed. By means of proposed amendment, a Court is to see whether any prejudice is likely to be caused to the other side which cannot be compensated by means of costs. It is to be borne in mind by the trial Court that no litigant should suffer either on account of mistake committed by a Court of Law on account of technicalities or hyper-technicalities of law. To put it in brief, an amendment sought for by a litigant either as plaintiff or defendant ought to be allowed by the Court to reduce/minimize the litigation between the parties to avoid multiplicity of proceedings. Furthermore, an error or mistake, which if not fraudulent, should not be the ground for rejecting the Application for amendment of pleadings. If the amendment/amendments sought for in the amendment application goes to the very root of the matter or it concerns with the real issues in controversy between the respective parties, the said application/amendment, in the considered opinion of this Court, ought to be allowed, notwithstanding the fact there may be a negligence, omission, on the part of a particular party applying for amendment in regard to the inordinate or long delay that has occurred relating to the proposed amendment. It is no doubt the discretion of the Court before which the application comes for hearing when it deals with an amendment application seeking amendment of plaint. Order VI, Rule 17 of Civil Procedure Code gave wide discretion to permit amendment even by condoning laches or delay, to impose costs and permit amendment for just and proper final decision in the suit. While allowing an amendment application in respect of pleadings, a Court cannot be expected to go into the merits and demerits of the amendment. It must be borne in mind that, the rules of procedure are only handmaid of Justice. A party/parties should not be denied/refused the just relief, because of some inadvertence, mistake or negligence or even the infraction of rules of procedure committed by the parties to the litigation. The substantive justice is to determine the real controversy between the parties finally by a conclusive judgment and order. It may be noted that the relief is based on the same facts previously pleaded. The relief prayed in the suit in substance appears to be based on the title claimed by the plaintiffs and for possession and injunction. The delay to prefer amendment or negligence may be penalized by imposing reasonable cost, but not by the complete or blanket refusal to amend the plaint because the real controversy in the suit is required to be decided finally by the trial Court. In sequel to the above discussion, therefore, the impugned order passed by the trial Court refusing the amendment in the plaint is found to be harsh to the plaintiffs and unsustainable in law. It is quashed and set aside. Upon payment of Cost of Rs. 1000/- by the petitioners-Plaintiffs payable to the respondents-defendants, the trial Court is directed to permit the petitioners/plaintiffs to amend the plaint within a period of two weeks from the date of receipt of copy of this order. It is also open to the trial Court to grant time to the respondents/defendants to file subsequent pleadings under Order VIII, Rule 9 of the Civil Procedure Code (Additional Written Statement, if they so desire/advised) within a period of one week next. The trial Court shall permit the parties to lead oral and documentary evidence subsequent to amendment of pleadings and filing of the additional Written Statement. Taking note of the fact that the suit is of the year 1996, the trial Court, after providing due opportunities to both parties, is directed to dispose of the main suit bearing Regular Civil Suit No. 742 of 1996 within a period of six months from the date of receipt of copy of this order and to report compliance to this Court without fail.
The parties are directed to extend their assistance and co-operation for the early completion of the main suit proceedings in expeditious manner.
The rule is made absolute accordingly.
