Parmeshwar Umbre vs Mahadeo Raut and Others

S.S. Shinde, J.—Rule. Rule made returnable forthwith. By consent, heard finally.

The Petitioner herein, is the original Plaintiff and the Respondents herein, are the original Defendants in Regular Civil Suit No. 130 of 2008 which was filed for declaration of ownership and perpetual injunction in the Court of learned Civil Judge, Senior Division, Majalgaon.

It is the case of the Petitioner that Respondent Nos. 1,2,4 and 6 to 8 filed their 4 Written Statement on 09092008 as per Exhibit44 challenging the claim of the Petitioner. While Respondent Nos. 3,5,9 and 13 to 16 have not filed their Written Statement. Respondent Nos. 10 and 12 are exparte.

On 19-07-2010 the Petitioner submitted application for amendment in the plaint on the ground that during pendency of the suit after measurement by the T.I.L.R. Respondent Nos. 4 and 6 to 8 have taken possession of portion of the suit land by making encroachment and therefore, the Petitioner wish to amend the plaint and further prayed for possession of the said portion, by way of amendment. After hearing the parties, the Civil Judge, Senior Division, Majalgaon allowed the application for amendment by order dated 19072010.

On 31-07-2010 the Petitioner filed another application for amendment on the ground that though by application at Exhibit66 the prayer of possession in respect of the encroached portion is made but the details/particulars about the pleadings remained to be inserted through oversight and therefore, sought the amendment.

On 04-08-2010 after hearing the parties, the learned Civil Judge, Senior Division, Majalgaon rejected the application for amendment at Exhibit70.

Hence, this writ petition.

Learned Counsel appearing for the Petitioner submits that, an application for amendment i.e. Exhibit66 came to be allowed. However, by way of application at Exhibit70, the Petitioner wants to insert the details of pleadings in respect of the same issue as it remained to be inserted through oversight of the concerned Advocate and therefore, said application ought to have been allowed. It is further submitted that, the Civil Judge, Senior Division, Majalgaon failed to consider that, the amendment as per Exhibit66 in respect of the same issue was sought on 19072010 and on the same day, it was allowed. By way of application Exhibit70 amendment was sought on 31072010, after about 11 to 12 days after the first application of amendment was disposed of. When it came to the knowledge of the concerned Advocate that details in respect of pleadings about same issue in Exhibit66 remained to be incorporated, immediately application Exhibit70 was filed, therefore, there was No. delay in submitting the subsequent application. It is further submitted that, the evidence of the parties is not yet commenced and thus, in order to resolve the real controversy between the parties, the trial Court ought to have allowed the application Exhibit70.

Learned Counsel appearing for the Petitioner further submitted that, the amendment sought by the Petitioner is not inconsistent with his original pleadings nor new ground is introduced by way of amendment, the amendment is not inconsistent with or disruptive of the original plea and therefore, it ought to have been allowed. It is further submitted that, there is No. intention on the part of Petitioner to defeat the rights already accrued to the Respondents nor to delay the proceedings. However ,due to subsequent events taken place during pendency of suit the amendment is sought. It is further submitted that, there is due diligence on the part of the Petitioner in seeking the amendment. Learned Counsel further submitted that, learned Civil Judge, Senior Division, Majalgaon failed to consider that, after allowing amendment at Exhibit66, the Petitioner has given second thought to the controversial issue i.e. pleading in respect of the same issue which was sought by way of amendment at Exhibit66 and therefore, the amendment being bonafide ought to have been allowed. There are No. malafide and the Petitioner has not designed to delay the proceedings and there will be No. prejudice to the other side by allowing the amendment and therefore, the amendment ought to have been allowed. It is further submitted that, the impugned order suffers from non assigning reasons on merits and Exhibit70 is rejected merely on the ground of delay. Learned Counsel, in support of his contention that, application Exhibit70 is required to be allowed to put an end to the controversy raised in the suit, pressed into service the judgment of the Hon''ble Supreme Court in the case of Surender Kumar Sharma v. Makhan Singh reported in 2009 AIR S.C.W. 6131. Therefore, learned Counsel would submit that, this writ petition may be allowed.

On the other hand, learned Counsel appearing for the Respondent Nos. 1,2,4 and 6 to 8 submitted that, the application at Exhibit66 was filed for the same cause of action and same is disposed of, therefore, the another application at Exhibit70 filed by the Petitioner, for the same cause of action, cannot be entertained, and rightly rejected by the trial Court. It is further submitted that, the Petitioner has failed to show due diligence and therefore, the trial Court has rightly rejected the application. It is further submitted that, on number of occasions when the matter was listed for recording the evidence of the Petitioner, adjournments are sought and therefore, the trial Court was right in holding that, the Plaintiff is not interested in prosecuting the suit but is interested to delay the same. Learned Counsel invited my attention to photocopy of Roznama and contended that, perusal of the said Roznama would make clear that on number of dates fixed for hearings, the adjournments are sought by the Petitioner. Therefore, learned Counsel would submit that, this petition is devoid of any merits and same deserves to be rejected.

I have given thoughtful consideration to the submissions of the learned Counsel for the parties, perused the pleadings in the petition, annexures thereto, impugned order and other documents placed on record by the parties including Roznama.

The Petitioner who is the original Plaintiff filed suit for declaration of ownership and perpetual injunction. It is not in dispute that, during pendency of this suit, T.I.L.R. was appointed to carry out the measurement and accordingly the report was submitted. As per said report, it is alleged that the Petitioner has encroached on the land of the Respondents. It is the case of the Petitioner that, during the pendency of this suit, the Respondents have taken possession of the alleged encroached portion and therefore, the Petitioner filed application at Exhibit66 in the pending suit for amendment of the plaint with prayer of possession of the land of which the possession has been taken by the Defendants. It is also not in dispute that application Exhibit66 was allowed by the trial Court on 19072010. While allowing the said application, the trial Court has observed that the matter is for recording the evidence. Recording of the evidence of the Plaintiff is yet to begin.

The Plaintiff has not stepped into witness box for leading his evidence ands therefore, if at this stage, such application for amendment is allowed then it would not cause prejudice to the Defendants and therefore, the application filed by the Petitioner Plaintiff at Exhibit66 for amendment of the plaint and further with prayer to seek possession of the portion of land of which Defendant Nos. 4 and 6 to 8 have taken forceful possession during pendency of the suit, can be allowed. Therefore, the application at Exhibit66 was allowed by the trial Court allowing the Petitioner Plaintiff to amend the plaint thereby allowing him to insert the pleadings in respect of his contention that, Defendant Nos. 4 and 6 to 8 have forcefully taken possession of the land in the month of April and further to that effect, the Plaintiff Petitioner was allowed to amend the prayer clause thereby seeking possession of the said portion of the land which according to the Petitioner is forcefully taken in the month of 10 April by Defendant Nos. 4 and 6 to 8. Therefore, the application Exhibit70 was only to provide better particulars since through oversight or mistake of the Advocate, the Plaintiff could not give better particulars at the time of amendment of the plaint and prayer in pursuant to the order at Exhibit66. Therefore, by way of amendment application Exhibit70 the prayer of the Plaintiff Petitioner was only consequential and the Plaintiff was only praying that he should be allowed to insert the better particulars about the amendment, which he is already allowed to carry out by order on Exhibit66.

It is also abundantly clear that, such application was moved by the Plaintiff Petitioner immediately within 11 to 12 days. The stage of the suit at the time of allowing Exhibit66 was the same when the application Exhibit70 was filed and came to be rejected. At the stage of rejecting Exhibit70, recording of the evidence was not begin. The observation of the trial Court that, the Plaintiff Petitioner is interested to prolong the trial also appears to be incorrect. The Plaintiff by prolonging the suit was not going to be benefited since No. any interim order is operating in favour of the Plaintiff. As stated earlier, the suit was at the stage of recording of evidence of the Plaintiff when application Exhibit66 came to be allowed, and same stage was there when Exhibit70 was filed by the Plaintiff. Therefore, it cannot be said that, the Plaintiff has filed application belatedly and has not shown due diligence. It is true that, on couple of occasions, the Plaintiff has sought adjournment, however, by seeking such adjournment neither any benefit has accrued to the Petitioner nor prejudice is caused to the Defendants. On the contrary, it is the contention of the Petitioner that, during pendency of this suit, after measurement by T.I.L.R., Defendant Nos. 4 and 6 to 8 have taken possession of the alleged encroached area, forcefully.

The contention of the Counsel for the Respondents that, for same cause of action, No. second application can be entertained/maintained, is devoid of any merits. In fact, the application Exhibit70 was only for providing better particulars in pursuant to the order on Exhibit66 and therefore, in order to adjudicate the controversy involved in the suit and further to put an end to it, it would be in the interest of parties that, application Exhibit70 is allowed, so that, further proceedings in the suit are not protracted or delayed.

I find considerable force in the arguments of the Counsel for the Petitioner that, to put an end to the controversy raised in the suit, application Exhibit70 ought to have been allowed by the trial Court. The Hon''ble Supreme Court in the case of Surender Kumar Sharma (supra) in Para7 has taken a view that, even if the prayer for amendment was belated one then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is further held that, it is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. (Emphasis supplied).

Therefore, it follows from the aforementioned authoritative pronouncement of the Hon''ble Supreme Court that, even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost.

Therefore, taking overall view of the matter, in my considered view, in the present case also, the application at Exhibit70 filed by the Plaintiff was only to add better particulars, and such better particulars in the plaint are to be added since due to mistake of the Advocate engaged by the Plaintiff, said better particulars were not included though the application of the Plaintiff for amendment of the plaint at Exhibit 66 came to be allowed by the trial Court. Therefore, application Exhibit 70 filed by the Plaintiff deserves to be allowed. Accordingly, an application Exhibit70 which was filed before the trial Court, is allowed subject to depositing costs of Rs. 5000/(Rs. Five thousand only) before the trial Court by the Petitioner i.e. Plaintiff within a period of four weeks from today. Upon depositing the said amount of Rs. 5000/-, the Defendant Nos. 1 to 12 will be entitled to withdraw the same without any condition.

The learned Counsel appearing for Petitioner original Plaintiff assures this Court that on the date fixed by the trial Court, the Petitioner Plaintiff will step in witness box for recording his evidence and he will not ask for unnecessary adjournments. Rule made absolute in the above terms. Writ Petition stands disposed of.