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In the High Court of Bombay at Aurangabad
S.S. SHINDE, J.
Shakuntala w/o Balasaheb Balsaraf, Since deceased through her Legal Heirs & Others
Versus
Ramdas s/o Laxman Balsaraf & Others
Writ Petition No.7611 of 2012
Decided On : 01-02-2013
Where defendants, during pendency of suit for declaring sale deed null and void, had taken possession with police aid, therefore amendment of plaint sought by plaintiff, seeking relief of restoration of possession liable to be allowed. - Upon careful perusal of the contention of the application for amendment, in fact, the plaintiffs are seeking relief of restoration of possession of 17 Acre land from respondent Nos. 2 and 3. It is the case of the plaintiffs that, initially the relief of injunction was sought, however, respondent Nos. 2 and 3 have taken possession of the suit land with the police aid and therefore, it was necessary to seek amendment to the plaint and prayer for additional relief of restoration of possession.
The main prayer that, the sale deed executed by respondent No. 1 in favour of respondent Nos. 2 and 3, in respect of the suit land is without having any authority to respondent No. 1 to execute such sale deed and therefore, said sale deed should be declared null and void, is incorporated in main suit. In the main suit, there are pleadings to the effect that, the sale deed executed by respondent No. 1 in favour of respondent Nos. 2 and 3 in respect of 17 Acre land should be declared null and void. By way of amendment, the plaintiffs are only relief of restoration of possession.
If such amendment is not allowed, the plaintiffs will have to file another suit seeking the said relief, which would increase the multiplicity of the litigation. By allowing such amendment, the nature of the suit will not change. There is main prayer for declaration that, the sale deed executed by respondent No. 1 in favour of respondent Nos. 2 and 3 should be declared null and void.
In the facts of the ’present case, validness of sale deed is implicit in the pleadings in the plaint and the plaintiffs have sought relief of restoration of possession of the suit land since according to them, possession of suit land is taken by defendant Nos. 2 and 3 with the police aid during the pendency of the suit.
Therefore, taking overall view of the matter, in my opinion, the application for amendment below Exhibit-137 should have been allowed by the trial Court to avoid multiplicity of the litigation and to set at rest the questions in controversy involved in the suit. It is true that, there is a belated attempt by the plaintiffs to bring such amendmen t, however, the defendants can be compensated by awarding the costs. Accordingly, in the aforesaid back ground, the following order is passed.
(1) The writ petition is allowed in terms of prayer clause (B);
(2) The petitioners i.e. original plaintiffs should be allowed to amend the plaint as per amendment application at Exhibit 137. However, the plaintiffs are directed to deposit Rs. 6000/- (Rs. Six thousand only) towards costs in the trial Court, within two weeks from today. Upon such deposit of costs amount, defendant Nos. 1 to 3 will be entitled to withdraw the same in proportionate, unconditionally.
(3) The deposit of costs amount of Rs. 6000/- by the plaintiffs is a precondition for allowing the amendment, to be carried out in the plaint. After depositing the costs amount, the plaintiffs shall carry out amendment immediately within one week. The respondents will have liberty to file additional written statement, if any, to the amended portion in the plaint within one week from actual amendment in the plaint. The whole exercise should be done by the parties within five weeks from today.
(4) Since the suit is pending from 1998, the trial Court after allowing the amendment to the plaint and written statement, if any, by the respondents to the amended plaint, shall proceed to hear and decide the suit, as expeditiously as possible, however, within three months from today.
(5) Rule is made absolute on above terms.
Rule. Rule made returnable forthwith.
Heard finally with the consent of the parties.
2. This writ petition takes exception to the order dated 9th August, 2012 passed below Exhibit-137 in Regular Civil Suit No. 310 of 2000 by the Civil Judge, Junior Division, Akole, District Ahmednagar.
3. The back ground facts as disclosed in the petition are as under:-
The petitioners herein, are the original plaintiffs and the respondents herein, are the original defendants in Regular Civil Suit No. 310 of 2000. The said suit is filed for declaration and injunction against respondent Nos. 1 to 3. In the said suit, the petitioners herein, filed application for amendment in the plaint, which came to be rejected by the impugned order. Hence, this writ petition.
4. Learned Counsel appearing for the petitioners invited my attention to the averments in the plaint and submitted that, the suit property was earlier owned by one Ashok Narayan Shete, and father of petitioner NO.1A Dhondiba Anand Balsaraf was in possession of the suit property under tenancy right. It is submitted that, there was dispute in respect of the tenancy of the suit property, later on, there was compromise between the parties and the original plaintiffs and respondent No. 4 purchased the suit property from Ashok Narayan Shete. Respondent No. 1 is a nephew of petitioner No. 1 in whose name 17 Are land out of 36 Are of the suit property of the petitioners was mutated only as a family arrangement, however, actual possession of 17 Are land was never given to respondent No.1. Respondent No. 1 taking disadvantage has mutated his name for 17 Are land from the suit property and sold the same to respondent No. 2 by executing the sale deed dated 2nd December, 1997. It is further submitted that, on the strength of said void sale deed, respondent Nos. 2 and 3 are disturbing possession of the petitioners and respondent NO. 4 over the suit property. Hence, the petitioners filed suit for declaration and injunction.
5. It is submitted that, by way of amendment in the plaint, the petitioners want to contend that, "the plaintiffs have filed suit against the defendants for declaration that the sale deed executed by defendant No.1 in favour of defendant Nos. 2 and 3 may be declared as null and void and possession taken by defendant Nos. 2 and 3 of 17 Are land from the western portion of the suit property with the aid of the police should be restored back to the petitioners." It is further submitted that, by way of amendment, the petitioners want to contend that, "the possession of 17 Are land from western side of the suit property from defendant No. 2 and 3 should be restored back to the plaintiffs since their possession is on the basis of void sale deed and same is taken with the aid of the police." It is submitted that, the said amendment was of technical nature and cannot change the nature of the suit. It is submitted that, if such amendment is not allowed, the plaintiffs will have to institute another proceedings for recovery of possession. It is submitted that, therefore, relief of declaration that, the sale deed executed by defendant No.1 in favour of defendant Nos. 2 and 3 should be declared as null and void in respect of 17 Are land from the western portion of the suit property is main relief sought in the suit. Therefore, by way of amendment, the petitioners are claiming only possession of 17 Are land from western portion of the suit property from defendant Nos. 2 and 3 since such possession is taken by them on the basis of void sale deed and with the aid of police. It is submitted that, the amendment in the plaint can be allowed even after commencement of trial if questions in controversy can be set at rest by allowing said amendment. It is submitted that, to avoid multiplicity of litigations, the application filed by the petitioners for amendment of the plaint ought to have been allowed by the trial Court. It is submitted that, if the petitioners are allowed to amend the pl
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