1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8011 OF 2010 Sumanbai w/o Bajirao Marathe ... PETITIONER (Original Plaintiff) V E R S U S Ashok s/o Shivnarayan Kasat & ors. ... RESPONDENTS (Original Added Defendants) ..... Shri C.R. Deshpande, Advocate for petitioner Shri U.S. Malte, Advocate for respondent No.2 ..... CORAM : SHRIHARI P. DAVARE, J. DATE : 24th September, 2010. PER COURT : 1. Heard learned counsel for the parties. 2. The petitioner (original plaintiff) has filed the present petition, challenging the impugned order dated 6.2.2010, passed by learned Civil Judge, Junior Division, Dharangaon, below application Exh. 73 in Regular Civil Suit No.28/2008, thereby rejecting the application preferred by the petitioner for amendment under Order VI Rule 17 and under Order I Rule 10 of the Code of Civil Procedure, and prayed for quashment thereof. 2 3. The petitioner, who is the original plaintiff, has filed Regular Civil Suit No.18/1998 before the Civil Judge, Junior Division, Erandol, which was subsequently numbered as Regular Civil Suit No.28/2008 at Dharangaon Court, for declaration that the sale deed dated 15.3.1986 is bogus, null and void. The defendant Nos.2 and 3 appeared therein and filed written statement on 3.11.1998 and opposed the said claim. Considering the pleadings, the learned trial Court framed the issues on 10.10.2006. Thereafter, the petitioner/ plaintiff adduced her evidence as well as the defendant No.2 filed his affidavit on evidence in lieu of examination- in-chief on 29.11.2006 and even his cross-examination also has been completed. Moreover, even the affidavit of evidence of the witness of the said defendant also has been filed. At this juncture, the petitioner/ plaintiff preferred an application for amendment of the plaint on 24.8.2009 below Exh. 73. The defendants opposed the said application by filing say on 14.9.2009. Considering the rival contentions, the learned trial Court passed the order on application below Exh. 73 on 6.2.2010 and thereby rejected the application of the petitioner for amendment of the plaint. Being aggrieved and dissatisfied by the said order, the petitioner (original plaintiff) has filed the present petition and prayed for quashment thereof. 4. Admittedly, the petitioner (original plaintiff) had 3 preferred application below Exh. 73 for amendment of the plaint on 24.8.2009 and the said application was preferred by the original plaintiff under the composite provisions i.e. under Order VI Rule 17 of the Code of Civil Procedure and under Order I Rule 10 of the Code of Civil Procedure. Even the averments and contentions made in the said application are under both the said provisions i.e. under Order VI Rule 17 of the Code of Civil Procedure and under Order I Rule 10 of the Code of Civil Procedure. However, on perusal of the impugned order dated 6.2.2010 passed by the learned trial Court, it appears that, the learned trial Court has given reasoning under Order VI Rule 17 of the Code of Civil Procedure while rejecting the said application, but has not given any reasoning and finding in respect of the rejection of the said application under Order I Rule 10 of the Code of Civil Procedure. Considering the entire impugned order, it appears that, the tenor and reasoning adopted by the learned trial Judge while rejecting the said application is on the footing of Order VI Rule 17 of the Code of Civil Procedure whereas the said application preferred by the petitioner/ plaintiff under another provision i.e. Order I Rule 10 of the Code of Civil Procedure has apparently not been answered therein. 5. On the aforesaid background, Mr. C.R. Deshpande, learned counsel for the petitioner fairly conceded that the impugned 4 order dated 6.2.2010 passed by the learned trial Judge is sustainable as regards to the provision of Order VI Rule 17 of the Code of Civil Procedure considering the facts and legal position, but the learned counsel submitted that the said impugned order has not dealt with another provision i.e. Order I Rule 10 of the Code of Civil Procedure, under which also the application Exh. 73 was preferred by the plaintiff in respect of addition of party i.e. Nivrutti Tarachand Patil as defendant No.4 in the plaint as stated in the said application. 6. In the aforesaid scenario, Mr. Malte, learned counsel for the respondent No.2 relied upon the observations made in the case of Alkapuri Co-operative Housing Society Ltd. Vs. Jayantibhai Naginbhai (deceased) L.Rs. (AIR 2009 SUPREME COURT 1948), in which the Hon'ble Apex Court held in para No.15 as under : "15. It is neither in doubt nor in dispute that the Court's jurisdiction to consider an application for amendment of pleading is wide in nature, but, when, by reason of an amendment, a third party is sought to be impleaded, not only the provisions of O.VI, R.17, Code of Civil Procedure (C.P.C.) but also the provisions of O.I, R.10, C.P.C. would come into play. When a new party is sought to be added, keeping in view the provisions of sub-rule (5) of Rule 10 of Order I, C.P.C., the question of 5 invoking the period of limitation would come in." 7. Accordingly, learned counsel for the respondent canvassed that by reason of an amendment when third party is sought to be impleaded, not only the provisions of Order VI Rule 17 of the Code of Civil Procedure but also the provisions of Order I Rule 10 of the Code of Civil Procedure would come into play and when one party is sought to be added, the provisions of Order I Rule 10(5) of the Code of Civil Procedure would come into picture invoking the period of limitation, and submitted that the said aspect can be considered even by this Court. 8. Having the comprehensive view of the matter, since the application Exh. 73 has been preferred by the petitioner under the composite provisions i.e. Order VI Rule 17 of the Code of Civil Procedure as well as Order I Rule 10 of the Code of Civil Procedure and since the impugned order dated 6.2.2010 dealt with only one provision i.e. Order VI Rule 17 of the Code of Civil Procedure and not considered the pleadings and prayer in the said application as regards to Order I Rule 10 of the Code of Civil Procedure, and since the learned counsel Mr. C.R. Deshapnde, appearing for the petitioner has fairly conceded that the impugned order is sustainable in respect of Order VI Rule 17 of the Code of Civil Procedure, but same has not dealt with another provision i.e. Order I Rule 10 of the 6 Code of Civil Procedure, under which provision also the said application Exh. 73 was preferred, the matter is required to be remanded back to learned trial Judge with directions to consider the application Exh. 73 under Order I Rule 10 of the Civil Procedure also; taking into consideration the pleadings, issues and more particularly the aspect of limitation and to pass consequential order in furtherance of the impugned order, and the said exercise need not be done by this Court, as canvassed by learned counsel for respondent No.2. 9. In the circumstances, present petition is allowed partly and matter is remanded back to the learned trial Court i.e. Civil Judge, Junior Division, Dharangaon with directions to consider the petitioner’s application Exh. 73 to the extent of pleadings and prayer regarding Order I Rule 10 of the Code of Civil Procedure and to pass the consequential order in furtherance of impugned order on its own merits, in accordance with law, considering the pleadings of the parties and also issues framed in the suit and also the provisions of limitation, if any, and present Petition stands disposed of accordingly. (SHRIHARI P. DAVARE) JUDGE fmp/wp8011.10