1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8095 OF 2009 Vithoba Maroti Shelke ..Petitioner Versus Bhagwan Dhondu Katkar and another ..Respondents ... Advocates appearing for : Petitioner : Shri D.R.Irale Patil and Respondents : S.V.Gangapurwala. ... CORAM : S.B.DESHMUKH,J. Dated : 11.1.2010 PER COURT :- 1. Heard respective counsel. 2. Rule. By consent, Rule made returnable forthwith. 3. The petitioner / plaintiff takes an exception to the judgment and order passed by the learned trial Court below Exhibit 33 in RCS No.74 of 2008. Petitioner herein is seeking amendment to the plaint, which has been rejected by the trial court by the order dt.1.10.2009. Learned counsel for respondent / defendant points out copy of the plaint, which is on record. Civil suit seems to have been filed by the plaintiff on 18.4.2009. Subject matter of the suit is agricultural land in Gut No.300 ad measuring 1 Hectare and 39 Ares. Plaintiff has pleaded that out of the suit property, land to the 2 extent of 1 Hectares and 20 Ares was mortgaged with defendant No.2 by a registered instrument No.2470/2003 on 13.5.2003. Though it was a sale deed, according to the plaintiff, on the date of execution of that document, land to the extent of 2 Hectares and 19 Ares was only with the plaintiff. Out of Gut No.300, land to the tune of 80 Ares from the Eastern side of the said Gut had been sold by the plaintiff. Plaintiff has further pleaded that he was in need of money for performing the marriage of his daughter and had accepted money from defendant No.1 and in lieu of said amount of loan, document was to be executed. This alleged document was bearing No.3116 of 2004. This transaction was caused by the plaintiff because he is the original owner of the land and according to him, original transaction by the plaintiff in favour of defendant No.2 was loan transaction. It was according to plaintiff though styled as sale transaction in favour of defendant No.2 by the plaintiff, was without possession, without consideration and was for Rs. 34,000/-. Learned counsel for respondent has pointed out from the original pleadings in the plaint paragraph No.1 that plaintiff had specifically pleaded that the plaintiff had executed sale deed in favour of defendant No.2 and possession of the land was not given to defendant No.2. This pleading is material, according to learned counsel for defendant. All along it was pleading of the plaintiff that despite transaction by him in favour of defendant No.2, possession of the land remained with the plaintiff. With this and other pleadings, the plaintiff had filed a suit and sought a decree against defendant No.1 that he should be directed to accept Rs.34,000/- and execute the sale deed of the suit land in favour of the plaintiff. Another relief sought in the plaint was declaration that the plaintiff is owner of the suit property. 3 With this learned counsel appearing for defendant took me to the application for amendment filed by the petitioner at Exhibit 33. In this application by way of amendment paragraph No.2A is sought to be inserted. In this proposed amendment paragraph No.2A, it has been pleaded by the petitioner that at the time of execution of the sale deed No.3116 of 2004, plaintiff did accept Rs.34,000/- from defendant No.1. However, at that time, it was agreed amongst the plaintiff and defendant No.1 that plaintiff shall hand over possession of the suit property to defendant No.1. There shall be no rent of the land in favour of the plaintiff and no interest to be charged or paid by the plaintiff to defendant No.1. In other words, it was a transaction or agreement that defendant No.1 shall cultivate the suit land, shall not make the payment of rent to the plaintiff and plaintiff shall enjoy the amount of Rs.34,000/- but shall not be responsible for payment of the money price. It was further agreed, according to the plaintiff in this proposed pleading that whenever the plaintiff would return the amount of Rs.34,000/- to defendant No.1, defendant no.1 shall execute the sale deed in favour of the plaintiff. At the time of this agreement, the plaintiff has further pleaded that possession of the disputed property was given by the plaintiff to defendant No.1 and thus defendant No.1, since then is cultivating the suit property. With these proposed pleadings, plaintiff has sought amendment in prayer clause that the sale deed bearing No.3116 of 2004 dt.4.6.2004 shall be declared as null and void, be quashed and set aside and possession of the suit property be handed over to the plaintiff from defendant No.1. 3. On behalf of defendant, reply has been given in the trial Court. 4 It is a short reply saying that if the amendment is allowed, nature of the suit would be changed and therefore, the application should be rejected. 4. The trial court rejected the application on the ground that there is no explanation in the application as to why the fact which is sought to be pleaded by amendment application was not pleaded earlier and secondly, nature of the suit would not be changed if such amendment is allowed. According to the trial Court, the plaintiff now is trying to take diagonally opposite stand in the proposed amendment. Learned counsel for respondent / defendant supports the order passed by the trial Court. 5. Indisputably, the suit was filed on 18.4.2008 i.e. After the amendment to Civil Procedure Code – Order VI Rule 17 – made enforceable from 1.7.2002. I have considered the submissions of the learned counsel for the parties. I have seen the original pleadings in the plaint and written statement, which are available on record. The real controversy amongst the parties is to the nature of the transaction as to whether it is a money lending transaction against security of the agricultural land or it is an out and out sale amongst the parties. Intention and objective behind Order VI Rule 17 of CPC is to resolve the real controversy amongst the parties. I have considered the date of filing of the suit, date of filing of the amendment application and nature of amendment sought. It is fairly settled law that inconsistent pleas can be raised in the pleadings by way of amendment. Stage of the suit, indisputably, is not of leading of evidence. Learned counsel agree that even issues are not framed. In my view, order impugned in this Writ Petition is 5 perverse and needs to be quashed and set aside, in view of the provisions laid down under Order VI Rule 17 of CPC, in the facts and circumstances obtaining in the case on hand. 6. The petition is therefore, allowed. Order impugned is quashed and set aside. Amendment application Exhibit 33 stands allowed. Defendants are permitted to file additional written statement in accordance with the provisions of law. Rule made absolute. No order as to costs. ( S.B.DESHMUKH, J.) ... akl