Writ Petition No. 2000 of 2013. Case: Shivaram and Ors. Vs Sou. Vrundavani and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 2000 of 2013 |
| Counsel | For Appellant: A.R. Devkate, Advocate and For Respondents: A.S. More, Advocate |
| Judges | R. V. Ghuge, J. |
| Issue | Code of Civil Procedure (CPC), 1908 - Order VI Rule 17 |
| Judgement Date | March 22, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
R. V. Ghuge, J.
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. The petitioner No. 1 is original defendant No. 1 whereas the petitioner Nos. 2 to 4 are original defendant Nos. 9 to 11. The Regular Civil Suit No. 155/2009 is filed by respondent Nos. 1 and 2, who are plaintiffs, in the Court of Civil Judge, Junior Division, Paranda, for declaration of ownership, partition and separate possession of their ancestral and joint family properties.
3. The petitioners are aggrieved by the order dated 18.2.2013 delivered by the trial Court by which application (Exhibit 110) in Regular Civil Suit No. 155/2009 seeking amendment to the plaint under Order VI Rule 17 has been allowed. While issuing notice, this Court has stayed the suit by order dated 13.3.2013 and since then the suit has not progressed.
4. Shri Devkate, learned Advocate for the petitioners, has strenuously criticized the impugned order. His submissions can be summarized as follows:-
a] The suit preferred by the original plaintiffs is for partition and separate possession with regard to three block numbers.
b] The plaintiffs and the defendants are close relatives.
c] Written statement was filed by the petitioners on 6.9.2012.
d] In paragraph No. 12 of the written statement, it has been specifically averred that since all the properties have not been included in the suit for partition and separate possession and as such do not find place in the common hotch-pot, the suit be dismissed for the failure on the part of the plaintiffs to include all the properties.
e] Issues were cast on 8.12.2010 and issue No. 7, based on the pleadings of the defendants, has been framed to the extent as to whether the suit is bad for not bringing all the properties in the common hotch-pot.
f] The plaintiffs stepped into the witness box and the cross-examination commenced on 13.12.2012.
g] A specific question was posed with regard to a property, which was not included in the suit.
h] The plaintiffs sought an adjournment for further cross-examination and within 20 days moved an application (Exh. 110) on 8.1.2013 praying for leave to amend the plaint under Order VI Rule 17 of the Code of Civil Procedure.
i] By the proposed amendment, the plaintiffs desired to add parties, add properties, challenge a decree passed in RCS No. 199/2006, correct the mistakes in the names of the parties etc.
j] By challenging the sale deeds and the decree as being not binding on the parties, the nature of the suit is sought to be altered.
k] There is no pleading with regard to due diligence in respect of making the application for amendment in the light of the Proviso to Rule 17 under Order VI.
l] Commencement of the trial prohibits an amendment.
m] The plaintiffs were required to file a separate suit for challenging the decree and the sale deeds, which would be barred by limitation and hence to overcome the limitation, an amendment is proposed.
n] Impugned order be quashed and set aside.
5. Shri More, learned Advocate appearing on behalf of respondent Nos. 1 & 2 - plaintiffs, submits that though the petitioners had raised an issue of maintainability of the suit in paragraph No. 12 of the written statement, the petitioners did not realize the seriousness in the objections until the question was posed on 13.12.2012. It was then that the plaintiffs realized that their suit would get dismissed purely on the ground of non-addition of properties and non-addition of parties.
6. He further submits that subsequently the plaintiffs gathered knowledge as regards the decree in Regular Civil Suit No. 199/2006. They also gathered knowledge as regards the partition-deeds in favour of the petitioners, which were likely to jeopardize the rights of the plaintiffs as well as the issues raised in the suit.
7. The plaintiffs, therefore, thought it fit and...
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