( 1 ) sa580.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 580 OF 2010 WITH CIVIL APPLICATION NO. 12474 OF 2010 Pundlik s/o. Narhari Sarode (Died – L.Rs.) .. Appellants Versus Ranubai w/o. Gangaram Kusale (Died – L.Rs.) .. Respondents Mr. P.V. Mandlik, Sr. Counsel i/b. Mr. Amol Gandhi, Advocate for the appellants. Mr. G.R. Ingole Patil, Advocate for respondent Nos. 1/1,3 & 4. WITH SECOND APPEAL NO. 587 OF 2010 WITH CIVIL APPLICATION NO. 12515 OF 2010 ( 2 ) sa580.10 Pundlik s/o. Narhari Sarode (Died – L.Rs.) .. Appellants Versus Punjaji w/o.Gangaram Kusale & Ors ... Respondents Mr. P.V. Mandlik, Sr. Counsel i/b. Mr. Amol Gandhi, Advocate for the appellants. CORAM : A.V. NIRGUDE, J. DATED : 22.06.2011 P.C. :- 1. Both these appeals can be decided finally at the stage of admission. These two appeals arise from two Civil Suits. Instead of referring the parties by their designations in the appeals, I refer them by their names. 2. Ranubai, admittedly, was owner of land Survey No. 43/4 (Gat No.96) of village Sarola, Tal. Basmathnagar, Dist. Parbhani, ( 3 ) sa580.10 admeasuring 23 Acres 2 Gunthas. Ranubai had three step sons. She did not have her own issue. Ranubai, therefore, made a Will in 1957 that the suit-land should be bequeathed to her step sons by name, Punjaji, Vitthal and Pandurang. During the lifetime of Ranubai in 1989 one Pundlik filed a suit against Ranubai and her step sons that they should not interfere in his possession of part of the above mentioned Gat No.96. She claimed that she purchased this small piece of land admeasuring approx. 4 acres from one Vitthal. On the other hand Ranubai also filed a suit soon thereafter asserting that this Pundlik and other had no concern to her property. The Courts below held that Pundlik and Kallyabai who purchased the suit land (piece of land admeasuring 4 acres from Pundlik) could not prove their title and so they granted perpetual injunction in favour of Ranubai and her step sons against Pundlik and Kallyabai. On the other hand the suit filed by Pundlik was dismissed. During the pendency of these suits Pundlik learnt that Ranubai herself had sold entire Gat No. 96 to her step sons Punjaji, Vitthal and Pandurang, way back in 1966. He, therefore, tried to improve his case in the pleadings that his vendor had valid title. He ( 4 ) sa580.10 filed an application for amendment to the pleading. His application was allowed, but he could not effect the amendment in the pleadings. Number of opportunities were given to him to amend the pleadings but in vain. Ultimately, the Judge of the Trial Court refused to permit him to amend the pleadings. 3. As said above, the suits were decided against Pundlik and Kallyabai and they filed appeals before the learned District Judge. During the pendency of the appeals, Pundlik once more made application to lead additional evidence. He wanted the Court to take on record the sale-deed of 1966 which Ranubai had executed in favour of her sons. The learned Judge refused to concede to such request and this and other reasons led the learned District Judge to dismiss the appeals. 4. When I perused the record of the Lower Courts, I found that the case of the appellant – Pundlik and Kallyabai would have been different, had they been permitted to place reliance on the above mentioned sale-deed of 1966. Had they been permitted to ( 5 ) sa580.10 amend their pleadings, there would have been significant difference in the outcome of the litigation. On the perusal of the judgment of the learned District Judge, I found that rather belatedly Pundlik’s advocate made an application seeking amendment in the pleadings. Through this amendment clearly appellant-Pundlik was trying to suggest that his vendor Vitthal - one of the step sons of Ranubai, became joint owner of entire Gat No. 96 along with his two brothers Punjani and Pandurang and in 1975 he sold the suit piece of land to him. As said above, the learned Judge of the Trial Court initially allowed this amendment and directed Pundlik’s advocate to effect the amendment in the original pleadings on payment of certain costs. The learned advocate appearing for Pundlik, it seems, failed to not only effect the amendment in the pleadings but even did not pay the costs. After few months, similar application was made and the learned Judge of the Trial Court again allowed Pundlik’s advocate to effect amendment in the pleadings and to pay costs. Again the learned advocate very unfortunately failed to comply with the directions. Few months thereafter similar application was made but this time the learned Judge refused to ( 6 ) sa580.10 permit the amendment to be carried out in the pleadings etc. I think the learned Judge of the Trial Court ought to have allowed the advocate of Pundlik to effect amendment in the pleadings. Had such amendment been effected the case of Pundlik would have been strengthened. There could not have been an additional issue requiring Pundlik to prove that after the sale-deed, his vendor Vitthal got the suit piece of land in partition etc. But, since this vital change in the pleadings of Pundlik was not allowed, he could not prove his case. In my view this resulted in miscarriage of justice. I am surprised to find that even the learned Judge of the First Appeal Court did not realize the importance of the proposed amendment. He mechanically toed the same line as that of the learned Judge of the Trial Court. The learned Judge of the First Appeal Court, in-fact, had ample opportunity to go behind and peep into the proposed amendment. He was aware that the Trial Court had initially permitted the amendment. He was also aware that Pundlik was trying to bring additional evidence on record in his Court and that evidence was a copy of the sale-deed of 1966. The learned Judge of the Appeal Court should have realized that the proposed ( 7 ) sa580.10 amendment would have made vital difference to the case of Pundlik and should have further realized that refusal to make such change in the pleadings would result into gross miscarriage of justice. In my view both the judgments of the Courts below deserve to be set aside and Pundlik deserves opportunity to effect amendment in the pleadings. Pundlik should of-course be permitted to pay heavy costs to the respondents for this indulgence. 5. The appeals are allowed. The impugned judgments of the Courts below are set aside. Both the cases are remanded back to the Trial Court on payment of costs of Rs. 5000/- (Rupees Five Thousand Only) to Ranubai’s legal representatives within two weeks from today. The learned advocate appearing for Pundlik and Kallyabai shall effect amendment as Pundlik had sought earlier. After the amendment in the pleading is duly effected the Office shall remit the record back to the Trial Court. The parties shall appear before the Trial Court on 24th August 2011. 6. Pundlik and his successor in title Kallyabai both are further ( 8 ) sa580.10 given liberty to amend their pleadings, if required but the same should be effected with in two week from 24th August 2011. Similar liberty for making amendment in pleading in reply is also give to the opponents. The learned Judge of the Trial Court shall then frame issues if required and shall record additional evidence, if required. The learned Judge of the Trial Court shall decide both the suits together. 7. In view of disposal of the second appeals, the connected Civil Applications do not survive and stand disposed of. [A.V. NIRGUDE, J.] snk/2011/JUN11/sa580.10ok