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2018 Supreme(Bom) 1506
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
RAVINDRA V. GHUGE, J.
Dattatraya Kashinath Mandekar and another - Petitioners
Versus
Changdeo Dagdu Khule and others - Respondents
W.P. No. 1849 of 2018
Decided On : 15-02-2018
For the Petitioners: Tambe Rahul A.
For the Respondents: Padalkar Harshad H.
Headnote:
Code of Civil Procedure - Order VII, Rule 3 - Order 21, Rule 32 - Seeking measurement of suit land - Plaintiffs have filed RCS for seeking measurement of the suit land, fixing of boundaries and for recovery of the encroached area of about 0.03 gunthas. After the suit was filed, the Written Statement was entered by the contesting defendants/respondent 1 and 2 herein, It was specifically stated in paragraph No. 4 of the Written Statement that the suit deserves to be dismissed on the ground of a rough sketch map having not been placed on record in compliance of Order VII, Rule 3 of the Code of Civil Procedure - Plaintiffs have sought appointment of the Court Commissioner, who has submitted his report along with a map - Based on the said report and the map, plaintiffs have added prayer clause (C) to the plaint, by an amendment. The recording of oral evidence of all the litigating sides had concluded - Final arguments were also over and the matter was at the stage of delivering a judgment. However, since Exhibit 73 was filed by the plaintiffs for seeking an amendment, an additional issue was cast and hence the matter was relegated to the stage of recording of evidence – Held, Court View, such a situation can be averted in this case as the stage in the suit is now for recording of evidence post framing of an additional issue. So also the suit and it cannot be said that it is more than ten years’ old. Nevertheless, the rigours of the contesting defendants can be reduced by imposing costs upon these two plaintiffs - Impugned order is quashed and set aside and application Exhibit 86 is allowed by imposing costs which both these petitioners shall deposit jointly in the trial Court when the matter is posted before the trial Court. Both these defendants shall withdraw said costs, in equal proportions without any conditions - Court deem it appropriate to direct the learned Registrar (Judicial) of this Court to place a copy of this order before each learned Principal District Judge in this State so as to bring to the notice of each Judicial Officer under the respective Judicial district that a proper scrutiny of the suit shall be performed by the concerned office of the Courts and in the event of a sketch map being required to be annexed to the plaints, depending upon the cause of action in due deference to Order VII, Rule 3 of the Civil Procedure Code, the trial Court shall place such suits in objection category and shall not proceed with the said suits, until there is a proper compliance of Order VII, Rule 3 of the Civil Procedure Code to avoid further complications as are visible in the judgments cited in this proceeding - Petition allowed.
Key Points: - The court held that the stage in the suit can allow amendment and cure noncompliance by directing proper compliance with Order VII, Rule 3 and potentially using section 152/47 CPC; noncompliance is curable (Pratibha Singh, Catarina Fernandes) (!) (!) (!) . - Noncompliance with Order VII, Rule 3 is not incurable per se; defect can be cured to avoid dismissal and to ensure proper identification of immovable property in decree (!) (!) . - The court directed costs to be imposed on the plaintiffs for filing Exhibit 86 and ordered equal withdrawal by defendants, and instructed the Registrar to notify all judicial officers to ensure proper scrutiny and objection categorization if sketches are required (!) (!) (!) (!) . - The matter is related to enabling compliance with Order VII, Rule 3 to prevent long delays and to avoid dismissals based on defective pleadings, citing Pratibha Singh and Mohana Naik/Catarina Fernandes lines of authority (!) (!) (!) . - The court allowed the petition and quashed the impugned order, with costs awarded and a direction to enforce proper map submission going forward (!) . - Deletion of non-contesting respondents was allowed at the petitioners’ risk (!) .
What is the remedy where a plaint in a suit for measurement of immovable property is filed without a sketch map as required by Order VII, Rule 3 CPC?
What is the Court’s position on curing noncompliance of Order VII, Rule 3 through amendments or other proceedings under sections 47, 152 CPC in light of Pratibha Singh and related judgments?
What are the consequences and appropriate costs or safeguards when amendment to add a sketch map is sought after an additional issue is framed and evidence is being recorded?
1. Learned counsel submits, on instructions, that since respondent Nos. 3 to 13 are not contesting respondents and such a statement has already been made even in the plaint, he seeks leave to delete respondent Nos. 3 to 13. Deletion is allowed at the risk of the petitioners/plaintiffs. Deletion be carried out forthwith.
2. The petitioners are aggrieved by the order dated 8-1-2018 passed by the trial Court, by which, application Exhibit 86 praying for leave to place on record a rough sketch map as an annexure to the plaint, has been rejected.
3. The plaintiffs have filed RCS No. 437 of 2011 for seeking measurement of the suit land, fixing of the boundaries and for recovery of the encroached area of about 0.03 gunthas. After the suit was filed, the Written Statement was entered by the contesting defendants/respondent 1 and 2 herein, on 3-1-2012. It was specifically stated in paragraph No. 4 of the Written Statement that the suit deserves to be dismissed on the ground of a rough sketch map having not been placed on record in compliance of Order VII, Rule 3 of the Code of Civil Procedure (“CPC”). Thereafter, the plaintiffs have sought appointment of the Court Commissioner, who has submitted his report along with a map on 23-10-2013. Based on the said report and the map, the plaintiffs have added prayer clause (C) to the plaint, by an amendment. The recording of oral evidence of all the litigating sides had concluded. The final arguments were also over and the matter was at the stage of delivering a judgment. However, since Exhibit 73 was filed by the plaintiffs for seeking an amendment, an additional issue was cast and hence the matter was relegated to the stage of recording of evidence.
4. At this stage, the plaintiffs preferred application Exhibit 86 on 15-9-2017 making a request that a rough sketch map needs to be placed on record and the earlier advocate engaged by the plaintiffs had not advised them to file a rough sketch map as is required under Order VII, Rule 3 of the Civil Procedure Code. By the impugned order, the trial Court has rejected Exhibit 86, concluding that a sufficient opportunity was available to the plaintiffs and yet the rough sketch map was not placed on record even though the defendants had specifically raised an objection. An issue as regards maintainability of the suit on that count has also been framed.
5. The learned counsel for the plaintiffs has relied upon the following judgments :
(i) Pratibha Singh vs. Shanti Devi Prasad, 2002 MhLJ Online (S.C.) 18 = 2002 DGLS (SC) 1043 (ii) Shri Mohana Kashinath Naik vs. Shri Prakash Gajanan Sukthankar Second, Appeal No. 69 of 2017 (Goa) Dated 25-1-2018 (iii) Catarina Fernandes and others vs. Jose Menino Rodrigues and another, 2013(1) Mh.L.J. 367 and (iv) Laxman Wamanrao Nagapure vs. Shankar Haribhau Adhau and another, 2014(3) Mh.L.J. 791.
6. The contention of the plaintiffs is that as they are agriculturists and do not have detailed knowledge of the Code of Civil Procedure, they have totally relied upon their Advocate with regard to filing of the plaint and manner of conducting the suit. For some reason, when the Advocate was changed and the new Advocate studied the entire case, it was informed that a rough sketch map was not placed on record and this is likely to be fatal to the suit since the plaintiffs have not acted even though the defendants had raised an objection in the Written Statement under Order VII, Rule 3 of the Civil Procedure Code. If non-furnishing of a rough sketch map would be fatal, the plaintiffs’ suit would be dismissed even without considering the merits of the matter, as the rough sketch map is not on record. It is, therefore, urged that the failure to comply with Order VII, Rule 3 of the Civil Procedure Code would result in the dismissal of the suit. The plaintiffs would have no opportunity to remove these deficiencies, which are on account of lack of proper advise by the concerned Advocate.
7. Learned counsel for the contesting defend
