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2023 Supreme(Online)(Bom) 28485
BOMBAY HIGH COURT
SHARMILA U. DESHMUKH, J
BHAGWAN KASHINATH MULE AND OTHERS – Appellant
Versus
SHRIDHAR MURLIDHAR YEVLE – Respondent
WRIT PETITION NO.980 OF 2023
For the Appellants/Petitioners: Mr. Ajinkya A. Joshi, Mr. Sharad V. Natu
For the Respondents: Mr. D. V. Tele
The court upheld that amendments to pleadings are permitted to clarify the factual background without altering the essence of the case.
Headnote:(A) Code of Civil Procedure, 1908 - Order VI Rule 17 - Amendment of plaint - Consent of joint family members regarding possession of property - The trial court’s order permitting partial amendments is upheld as necessary for resolving the controversy. (Paras 2, 3, 7)
(B) Amendment Process - Merits not to be reconsidered - The focus should be on the necessity of amendments for addressing current issues in the case, rather than altering the nature of the suit. (Paras 4, 6, 7)
Facts of the case:
The original plaintiff sought a declaration that a sale deed was not binding due to joint family possession, and requested amendments to elaborate the factual background post amendments in tenancy laws.
Findings of Court:
The court concluded that the amendments permitted by the trial court were necessary to clarify the factual context and did not alter the case's essence.
Issues: The main issue revolved around whether the proposed amendments substantively altered the original claims and whether they were necessary following developments in tenancy rights.
Ratio Decidendi: The court affirmed that amendments that clarify existing pleadings and incorporate subsequent developments are permissible, provided they do not alter the suit's nature.
Result: Writ Petition stands dismissed.
| Table of Content |
|---|
| 1. petition challenges amendment application regarding joint family property. (Para 1 , 2 , 3) |
| 2. petitioners argue amendments change the stance of the plaintiff. (Para 4) |
| 3. court examines necessity of amendments for factual context. (Para 5 , 6) |
| 4. permitted amendments do not alter the nature of the suit. (Para 7) |
| 5. final ruling affirms dismissal of the writ petition. (Para 8) |
FINAL ORDER:-
1. Petition takes exception to the order dated 15.11.2022 passed below Exhibit-71 in RCS No.233/2011 allowing the amend- ment application partly. Petitioners herein are the original Defen- dant No 1, 2 and 3 and the Respondent is the original Plaintiff. For sake of convenience the parties are referred by their original status.
2. RCS No.233/2011 was instituted by the Plaintiff seeking declaration that sale deed dated 10.04.2007 executed by Defen- dant No 1 in favour of Defendant No 2 and 3 is not binding on the Plaintiff and for order of perpetual injunction. The Plaintiff and Defendant No 1 are brothers and it is the case of the Plaintiff that the suit property forming the subject matter was a joint family property and was in possession of the joint family. It is the case of the Plaintiff that the Defendant Nos 2 and 3 have purchased the suit property by preparing bogus records and as such, the sale deed is not binding on the Plaintiff. An application came to be filed after the evidence was led under Order VI Rule 17 of the Code of Civil Procedure seeking amendment of the plaint. The amendments which were proposed are as under:
(A) In the body of plaint, in the claim a sentence to added that the sale deed is cancelled and for declaration that sale deed is not binding upon the plaintiff.
(B) An addition of paragraph 2A pleading that the grandfather of the plaintiff was the protected tenant of the suit property and the mutation entries are prior to 1991-92; thereafter, as the legal heirs of his grandfather Dattu Rustum all rights in respect of occupancy of the property was passed on to the plaintiff after his father and as the entry of the possession was not noted in the 7/12 extract, although the petitioner was in possession of the property, there is no record of the same in 7/12 extract;
(C) Paragraph to be added as 4A that as the Plaintiff’s grandfa-ther was being looked after by the Plaintiff, the possession of the property was handed over to the Plaintiff with the consent of all the brothers and the Plaintiff’s name is mu- tated in the occupancy column prior to 1984 which is being continued. As such, the disputed property is being occupied by the Plaintiff. The Tahsildar in the proceedings under Tenancy Act have issued a certificate under Section 38-E in favour of the Plaintiff as protected tenant;
(D) Paragraph 6(A) to be added that the sale deed which has been executed in favour of Defendant no.2 is without previ- ous sanction and as such, the sale deed under the Tenancy Act is liable to be cancelled and as such, a declaration to be given that both the sale deeds are cancelled and not binding upon the Plaintiff’s possession of the suit property;
(E) Paragraph no.11 pertaining to the Court fees to add the sum of Rs.3,89,000/- and to replace the Court fees with half of Rs.12,230/- i.e. Rs.6115/-;
(F) To add in prayer Clause (B) after the words “to declare the sale deed as cancelled and not binding upon the plaintiff and the disputed property”.
3. It was the contention of the Plaintiff that the neces- sary pleadings which are now sought to be added inadvertently remained and as subsequently the decision as regards the tenancy has been passed, it is subsequent development and the proposed amendment to be permitted. The Trial Court by the impugned or- der dated 15.11.2022 permitted the amendment only as regards (A), (C), (E) and (F) and rejected the rest of the amendments.
4. Learned counsel for the petitioners submits that none of the amendments could have been permitted in as much as by the proposed amendment the respondent/plainti
