The main legal point established in the judgment is the need for liberal allowance of amendments under Order VI Rule 17 to avoid multiplicity of proceedings and to consider the substantive rights of the parties, as supported by legal precedents.

Final Result : Allowed

JUDGMENT

Nitin B. Suryawanshi, J. - Rule. Rule made returnable forthwith. Heard finally with the consent of the parties.

2. This petition filed under Article 227 of the Constitution of India, takes exception to the order dated 09-06-2020 passed by the 10th Joint Civil Judge Senior Division, Ahmednagar below Exhibit-98 in Special Civil Suit No.125/2014, thereby rejecting the application filed by the petitioners under Order VI Rule 17 of the Code of Civil Procedure.

3. The petitioners original plaintiffs filed Special Civil Suit No.125/2014 against defendant No.1 father, defendant No.2 brother and defendant No.3 brothers wife under Sections 31, 35, 42, 45 of the Specific Relief Act, 1963 and under Section 14A of the Hindu Succession Act, 1956 seeking cancellation of two gift deeds, one of October, 2009 and another of the year 2011, as well as a registered General Power of Attorney in respect of the suit property, with a declaration that these three documents are not binding on the plaintiffs No. 1 to 4. Permanent injunction is sought in respect of the suit property.

The defendants appeared and resisted the suit by filing written statements. During the pendency of the suit, father defendant No.1 expired and mother defendant No.4 and sister defendant No.5 were brought on record as legal heirs apart from defendant No.2. Defendants No. 4 and 5 filed written statements on or about 30-12-2019. Issues were framed by the trial Court on 20-01-2020.

4. The petitioners filed application at Exhibit-98 on 17-02-2020 seeking amendment in the plaint contending that the main intention of the plaintiffs at the time of filing of the suit was for partition and separate possession of their share. At the time of filing suit some of the pleadings are in respect of the relation between the plaintiffs and defendants and in respect of plaintiffs share. However, in the suit, inadvertently, contentions in respect of the partition remained to be incorporated. During the pendency of the suit plaintiffs father and mother have expired and therefore, the plaint is required to be amended. Paragraph Nos. 9(A) and 14(2)(A) were proposed to be incorporated by way of amendment in the plaint. The said application was resisted by the respondent defendants. The trial Court rejected the application on merits. In the impugned order the trial Court has observed that when the plaintiffs are willing to pray for partition, it is also obligatory on their part to amend the title clause, jurisdiction clause, Court fee clause and also cause of action clause. Since there is no amendment proposed to these clauses, the application for amendment is defective. The said rejection order is impugned herein.

5. Heard the learned advocate for petitioners, the learned advocate for respondent No.2 and the learned advocate for respondent No.3.

6. The learned advocate for the petitioners submitted that the amendment was necessary in view of the death of father defendant No.1 and mother defendant No.4. The necessary foundation for the amendment is already laid in the plaint. He further submitted that since the first gift deed dated 08-10-2009 is challenged in the suit the proposed amendment and the suit cannot be said to be hit by limitation. According to him, due to inadvertence, the suit for simpliciter declaration and injunction was filed instead of seeking relief of partition. By relying on Order VI Rule 17, he submitted that the trial Court ought to have allowed the amendment application. He also submitted that the trial is yet to commence, affidavit of in-chief/evidence is yet not filed by the plaintiffs, before that amendment application was filed, which ought to have been allowed by the trial Court. Therefore, the impugned order may be quashed by allowing the writ petition and by allowing the petition amendment application at Exhibit-98 be allowed. He relied in Varun Pahwa Vs. Mrs. Renu Chaudhary, reported in (2019) 15 SCC 628, and N. C. Bansal Vs. Uttar Pradesh Financi