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IN THE HIGH COURT OF BOMBAY
Before : B. R. Gavai, J.
CHHABUBAI HARIBHAU BADAKH
Versus
S. H. KHAATOD
Writ Petition Nos. 1761, 1762, 1763, 1764 and 1765 of 2009
Decided On : MAY 4, 2009
Amendment - Civil Procedure Code - Order VI, Rule 17 - 2002 Amendment - The court discussed the provisions of Order VI, Rule 17 of the Civil Procedure Code and its 2002 amendment, emphasizing the requirement for a party to satisfy the condition that the matter sought to be brought on record by way of an amendment could not be brought on record prior to the commencement of the trial despite due diligence. The court highlighted the importance of due diligence in seeking amendments after the commencement of the trial and cited relevant judgments to support its decision.
Fact of the Case:
The petitioners filed suits for declaration of ownership by adverse possession and for a direction to effect entries in the record of rights. The respondents filed written statements, and one of the plaintiffs filed an application challenging the written statement and seeking amendment. The court was tasked with determining the validity of the amendment to the written statement filed by the respondents.
Finding of the Court:
The court found that the amendment to the written statement, sought at the fag end of the trial, did not satisfy the condition stipulated in the 2002 amendment to Order VI, Rule 17 of the Civil Procedure Code. It emphasized the importance of due diligence and held that the amendment could not have been allowed at that stage of the trial.
Issues: The main issue was whether the amendment to the written statement, sought after the commencement of the trial, satisfied the condition of due diligence as per the 2002 amendment to Order VI, Rule 17 of the Civil Procedure Code.
Ratio Decidendi: The court's decision was based on the interpretation of the 2002 amendment to Order VI, Rule 17 of the Civil Procedure Code, emphasizing the requirement for due diligence in seeking amendments after the commencement of the trial. It also considered relevant judgments to support its decision.
Final Decision: The writ petitions were allowed, and the court made the rule absolute in terms of prayer Clause (B), with no orders as to costs.
( 1 ) RULE. Rule made returnable forthwith. Heard by consent. The petitioners in this group of petitions have filed Regular Civil Suits against the respondents for declaration that the petitioners/plaintiffs have become owner of the suit land described in the plaint, by adverse possession and for a further direction to the respondent authorities to effect entries in the record of rights. On being noticed, the respondents appeared in the respective suits and filed written statement verified by one Nandkishore Parik. The claim of the plaintiffs/petitioners was resisted by the respondent No. 1 in the said written statement.
( 2 ) ONE of the plaintiffs in the identical suit filed an application that the written statement filed by the said Shri Parik cannot be treated as a written statement and prayed for "no W. S. Order". Subsequently, an application came to be filed by said Shri Parik for amendment which has been filed on 22/1/2009, for incorporating an averment that the said written statement has been filed by the General power of Attorney Holder on behalf of the defendants. The said application was allowed. Hence, the present petitions.
( 3 ) SHRI Shelke, learned Counsel appearing on behalf of the petitioners submits that the amendment has been allowed at the fag end of the trial. He submits that the amendment is allowed totally ignoring the provisions of Order VI, Rule 17 of C. P. C. and as such, the impugned orders are not sustainable in law. Shri Shelke, relies on the judgment of the Apex Court in the matter of (Ajendraprasadji N. Pande arid another Vs. Swami Keshavprakeshdasji N. and others), reported in 2006 DGLS (soft) 974 : A. I. R. 2007 s. C. 806 and (Vidyabai and others Vs. Padmalatha and another) 2008 DGLS (soft)1437 : (2009)2 S. C. C. 409.
( 4 ) SHRI Navandar, learned Counsel appearing for the respondents on the contrary submits that the courts should take a liberal view in grant of amendment. He submits that, by the amendment which is allowed, the respondents/defendants only wanted to incorporate a sentence that the written statement has been filed by the General Power of Attorney Holder on behalf of the defendants. He relies on the judgment of the Apex Court in the case of (Puran Ram Vs. Bhaguram and another), 2008 DGLS (soft) 276 : 2008 (4)S. C. C. 102 : 2008 (3) All. M. R. 843; (Usha Devi vs. Rijwan Ahmad and others), reported in 2008 DGLS (soft) 60 : (2008)3 S. C. C. 717; (Andhra Bank Vs. ABN Amro Bank N. V. and others), reported in 2008 (1) Bom. C. R. 836 : 2007 DGLS (soft) 2040 : (2007)6 S. C. C. 167; (Usha Balasaheb Swami and others. Vs. Kiran appaso Swami and others), reported in 2007 dgls (soft) 438 : (2007)5 S. C. C. 602; (Baldev singh and others Vs. Manohar Singh and another), 2006 DGLS (Soft.) 490 : 2006 (6)Bom. C. R. 710 : (2006)6) S. C. C. 498; (United bank of India Vs. Naresh Kumar and others), 1996 DGLS (soft) 1438 : (1996)6 S. C. C. 660; (Uday Shankar Triyar Vs. Ram Kaleshwar prasad Singh and another), 2006 (2)Bom. C. R. 636 : 2005 DGLS (soft) 561 : (2006)1 S. C. C. 75; (Chander Kanta Bansal vs. Rqjinder Singh Anand), 2008 DGLS (soft)340 : (2008)5 S. C. C. 117; (Sayan Kumar Vs. Ram Kishan), (2005)13 S. C. C. 89 and (Rajkumar Gurjwara (Dead) through L. Rs. Vs. S. K. Sarwagi and Company Pvt. Ltd. and another), reported in 2008 DGLS (soft) 656 : (2008)14 S. C. C. 364. He also relies on the judgment of the learned Single Judge of this court in the matter of (Bharat Petroleum Corporation Ltd. Vs. Precious finance Investment Pvt. Ltd.), reported in 2006 (6) Bom. C. R. 510 : 2007 (1) Mh. L. J. 331.
( 5 ) FROM the perusal of the record, it could be seen that the written statement was filed by the said Shri Parik on 28th April, 2006. Therafter, the issues were framed, evidence was led on behalf of the parties and at the stage of fag end of the trial, the aforesaid application for amendment of the written statement came to be filed after a period of almost 3 years. No doubt, that the learned co
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