2014 Supreme(Bom) 902

High Court of Judicature at Bombay
R.M. SAVANT, J.
Barkatali Abdul Razzak Kazi & Others
Versus
Manzoor Abdul Razzak Kazi & Another
Writ Petition No. 171 of 2014
Decided On: 11-04-2014

Headnote:Civil Procedure Code, 1908 - Order I, Rule 10 - Order VI, Rule 17 - Amendment of plaint. - Amendment of plaint sought by plaintiff changing natures of suit, cannot be allowed. - Insofar as the present Petition is concerned, in the context of the submission of the counsel appearing for the petitioners Shri. Kulkarni that the application would have to be considered only on the touchstone of Order I, Rule 10 of the CPC, the defining aspect would be the fact that the trial in the suit in question has already commenced. If that be so, the entitlement of the plaintiffs to seek amendment in the Plaint would therefore have to be considered on the touchstone of Order VI, Rule 17 of the CPC.

       In the said context, it would also be advantageous to refer to the Judgment of the Apex Court in the case of Abdul Rehman and Anr. v. Mohd. Ruldu and Ors., 2012 (11) SCC 341 : 2012 All SCR 2922, wherein, the Apex Court has defined the parameters for consideration of an application for amendment of the Plaint, after the trial has commenced and has laid down the matters to be considered, of which, one aspect is whether the relief claimed by way of amendment is time barred. The Apex Court has further held that if an application is made after the commencement of the trial, in that event, the Court would have to arrive at a conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. In view of the fact that the amendment application has admittedly been moved after the commencement of the trial, the mandate of Rule 17 would have to be followed, namely that the plaintiffs would have to satisfy the Court that inspite of due diligence, they could not have moved the amendment earlier. Insofar as the said aspect is concerned, the deposition of the plaintiff No. 2 assumes significance. The plaintiff No. 2 has unequivocally stated in her cross-examination that she was having the papers of the transfers, which were effected by the defendant No. 1 in favour of ’N’ (partner of Gurukrupa Enterprises) and that she became aware of the transfers three years prior to the date, on which, she deposed. The plaintiffs have sought to justify the delay in moving the amendment application by putting forward an explanation that they were, not aware of the allotment, until one ’M’ who is acquainted with the allotment under the 12.5% scheme told them that the allotment of plots was deficient having regard to entitlement of the plaintiffs and that it is thereafter that the plaintiffs made enquiries and on making enquiries with the Sub-Registrar’s office, they became aware of the transfers on 27th September, 2013.

       This explanation was not found worthy of acceptance by the trial Court, on the ground that no particulars, as to when the said ’M’ told the plaintiffs about the said facts, have been given and that the said explanation could not be accepted in view of the statements, which have come in the deposition of the plaintiff No. 2.

       The trial Court was right in holding that the plaintiffs have not satisfied the due diligence test. The trial Court has also held that the declaration sought by way of the amendments, which would be introduced in the year 2013 would be time barred, having regard to Article 58 of the Limitation Act. In view of the fact that rights have accrued in favour of the proposed defendant Nos. 3 and 4, it is not possible to accept the contention of the counsel appearing for the petitioners that the issue of limitation can be kept open for being adjudicated at the time of trial, as in the instant case, ex-facie, the relief sought by way of declaration in respect of the agreements is barred. In the light of the fact that the trial has already commenced, the submission of the counsel appearing for the petitioner that the application has to be considered giving predominance to Order I, Rule 10 of the CPC, cannot be accepted. Accepting such a contention would render the provisions of Rule 17 of Order VI of the CPC otiose. Apart from the same, having regard to the well settled principles, applicable whilst considering an application for amendment, namely that in allowing the amendment, the nature of the suit would not change and time barred claims are not introduced. If the application is considered by applying the said principles, then, the order passed by the trial Court cannot be faulted with, as by way of the instant amendments, the suit for declaration in respect of the Gift Deed and Will Deed is sought to be converted to a suit seeking declaration in respect of three agreements and the relief of partition. The plaintiffs have also sought to change their entitlement from 1/12th to 2/3rd and therefore, the finding of the trial Court that the same would change the nature of the suit, cannot be faulted with.

       Therefore, this is not a case where third parties are seeking their impleadment in the suit so as to protect their interests. The instant application would therefore have to be considered having regard to the well settled principles applicable after the trial has commenced i.e. the proviso to Order VI, Rule 17 of the CPC. If so considered, as held by the trial Court whilst rejecting the application, the plaintiffs have failed to satisfy the due diligence test and that the incorporation of the amendments in the suit would change the nature of the suit.

       Civil Procedure Code, 1908 - Order I, Rule 10 - Order VI, Rule 17 - Amendment of plaint. - Failure of plaint lift to satisfy due diligence test renders application for amendment of plaint liable to be rejected.