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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.B.Suryawanshi, J.
Mahadu Maruti Jawale – Appellant
Versus
Pralhad Bhanudas – Respondent
Writ Petition No. 1120 of 2022
Decided On : 09-02-2022
amendment - Civil Property Dispute - Code of Civil Procedure, Order VI Rule 17 - Writ Petition No.3497/2016, Writ Petition No.3204/2020 - The court allowed the amendment application under Order VI Rule 17, emphasizing the need for liberal allowance of amendments and the importance of bringing subsequent developments on record. The court also highlighted the settled legal position that merits of the amendment cannot be considered while deciding the amendment application.
Fact of the Case:
The plaintiffs filed a suit seeking declaration of ownership of a property and permanent injunction against the defendant. They sought an amendment to bring on record the defendant's encroachment and construction on the property.
Finding of the Court:
The trial Court rejected the plaintiffs' application for amendment, citing that it was not as per the directions of the High Court and that the nature of the suit would be changed if the amendment was allowed. The court, however, found that the trial Court had ignored the settled legal position that amendments are to be liberally allowed and that subsequent developments should be brought on record.
Issues: The main issue was whether the plaintiffs' application for amendment under Order VI Rule 17 should be allowed, considering the objections raised by the trial Court.
Ratio Decidendi: The court emphasized the need for liberal allowance of amendments and the importance of bringing subsequent developments on record. It also highlighted the settled legal position that merits of the amendment cannot be considered while deciding the amendment application.
Final Decision: The court allowed the plaintiffs' application for amendment, directing them to carry out the amendment within a period of two weeks and the defendant to file an additional written statement. The trial Court was instructed to proceed with the trial after the filing of the additional written statement and the plaintiffs' evidence affidavit.
JUDGMENT
1. Rule. Rule made returnable forthwith. Heard finally by the consent of the parties.
2. This petition challenges the order dtd. 18/12/2021, passed below Exhibit-100 in Regular Civil Suit No.93/2014, by the learned Civil Judge, Junior Division, Jamkhed, thereby rejecting the application filed by the petitioner - plaintiff under Order VI Rule 17 of the Code of Civil Procedure, for amendment.
3. The plaintiffs have filed the suit for declaration that they are the owners of the suit property bearing Gut No.590, admeasuring 0.71R, situated at Jamkhed, Taluka Jamkhed, District Ahmednagar. The prayer is also made that permanent injunction be granted against the defendant that he should not disturb the peaceful possession of the suit property of the plaintiffs and should not encroach and construct in the suit property. Earlier an application for amendment at Exhibit-56 was filed by the plaintiffs which was rejected by the trial Court. This Court in Writ Petition No.3497/2016, in which the trial Court's order was challenged, held thus:
"5. Considering the above, this petition is disposed off by permitting the litigating sides to make a joint application or the plaintiffs may do so for seeking appointment of the TILR as the Court Commissioner under Order XXVI Rule 9 of the CPC. The defendants would not oppose the said application in so far as appointment of the Court Commissioner is concerned. Such an application would be filed by either of the parties or jointly, within a period of four weeks from today.
6. The trial Court, while allowing the said application, would take the assistance of the litigating sides and issue appropriate directions to the TILR to carry out the joint measurements of the land Gut Nos.590 and 592. He shall be directed to fix the boundaries and submit a proper map indicating the proper directions.
7. After the above exercise is concluded and the map and report of the TILR is placed on record, the petitioners / plaintiffs would be at liberty to move an application for amendment based on the map and report of the TILR, under Order VI Rule 17 CPC, if felt necessary. Needless to state, the contentions or objections, if any, on the report of the TILR and amendment are left open. The impugned order dtd. 9/2/2016 would, therefore, not been an impediment."
4. Pursuant to the order passed by this Court, the TILR carried out joint measurement and submitted report Exhibit-82. The said report is accepted by the defendant but the plaintiffs objected the said report by filing application Exhibit-88. The plaintiffs, thereafter, filed application Exhibit-100 under Order VI Rule 17, raising the same contentions which are made in the earlier application Exhibit-56 and sought amendment in the plaint. The amendment for mandatory injunction is prayed for removal of illegal construction made by the defendant in the suit property. The application was opposed by the defendant by filing written say at Exhibit-106. The trial Court rejected the application Exhibit-100, hence, the present petition.
5. I have heard the rival submissions of the learned advocate for petitioners and the learned advocate for respondent. Perused the record and affidavit-in-reply filed by the respondent.
6. The plaintiffs have filed the suit seeking declaration that they are the owners of the suit property and permanent injunction is sought against the defendant that he shall not disturb the peaceful possession of the plaintiffs and shall not encroach and raise construction in the suit property.
7. Earlier, in Writ Petition No.3497/2016, this Court has granted liberty to the plaintiffs to file an amendment application based on the map and report of TILR, if felt necessary. The contentions or objections on the report of TILR and the amendment are kept open by this Court. The report of TILR prima facie appears to be not clear and the same is objected by the plaintiffs vide Exhibit-88.
8. Application Exhibit-100 is filed by the plaintiffs under Order VI Rule
The principle that amendments to pleadings should be allowed to ensure justice and to determine the real questions in controversy, provided they do not cause injustice or prejudice to the other party....
Amendments to pleadings under Order VI Rule 17 of C.P.C. can be allowed at any stage of proceedings to determine the real controversy.
The limitation for seeking a mandatory injunction begins from the date of actual encroachment, not from the completion of construction.
The main legal point established is that the trial court should only decide whether an amendment falls within the four corners of Order 6 Rule 17 of CPC and should not conduct a roving enquiry into t....
Amendments under Order VI Rule 17 of the CPC should be permitted if they do not alter the nature of the suit and are necessary for fair adjudication.
Point of Law : Amendments, which are sought to determine the real question in controversy between the parties, should be permitted to be made.
Amendments to pleadings post-trial commencement are not permissible unless due diligence is shown, ensuring they do not alter the fundamental character of the case.
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