WP/6483/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6483 OF 2010 Anuradha Sunil Barve & Ors. ... Petitioners V/s. State of Maharashtra & Ors. ... Respondents Mr. A.V. Anturkar, Sr. Advocate i/b. Mr. S.B. Deshmukh for the Petitioners. Mr. S.D. Rayrikar, AGP, for Respondent Nos.1 to 3. Mr. A.Y. Sakhare i/b. Mr. Vishwajeet Mohite for Respondent Nos.5 and 6. CORAM : B.R. GAVAI, J. DATE : 14 TH MARCH, 2011. P.C. : 1. By the present Petition, the petitioners challenge the order dated 25th February, 2010 passed by the Joint Civil Judge, Senior Division, Pune below Exhibit-96 in Regular Civil Suit No.1714 of 2002, by which the application filed by the present petitioners for amendment of the plaint came to be rejected. 2. The petitioners have filed a Suit for declaration that the petitioner are in possession and owners of the suit premises. The petitioners further sought a direction that the act of the Defendant Nos.4, 5 and 6 in entering their names in WP/6483/2010 2 the revenue records on the basis of illegal documents be declared as null and void and the same be cancelled and the revenue entries be corrected so as to incorporate the names of the petitioners in the same. The Suit was resisted by the Defendants by filing a written statement on 20th February, 2006. Admittedly, the Suit was filed on 19th November, 2002. In the said written statement, it was specifically pleaded that the Defendants are the owners and holders of the suit land by virtue of Sale Deed dated 23rd June, 1961. 3. After the written statement was filed, the plaint came to be substantially amended and amended plaint came to be filed on 8th October, 2008. After the Plaintiffs commenced their evidences and two witnesses were examined, the application came to be filed thereby seeking to incorporate a challenge to the validity of the Sale Deed dated 23rd June, 1961 on various grounds including fraud etc. The application for incorporating the said amendment was rejected. Hence, the present Petition. 4. Mr. Anturkar, the learned Counsel appearing on behalf of the Petitioners, submits that the learned trial Judge has rejected the application on the ground that the averments sought to be incorporated in the plaint and the claim of the Plaintiffs is beyond limitation. It is submitted that at the stage of grant or refusal of amendment, such an issue cannot be gone into and, therefore, the jurisdiction WP/6483/2010 3 exercised by the learned trial Judge has been exercised with the material irregularity, warranting an interference by this Court. 5. Mr. Sakhare, the learned Senior Counsel appearing for Respondent Nos.5 and 6, submits that the learned trial Judge has by a well reasoned order has rejected the application and as such no interference could be warranted. 6. Since the present Suit is filed in the month of November, 2002, it will be prolonged by amendment under the provisions of Code of Civil Procedure, which came into effect from 1st July, 2002. As such, if an amendment was to be allowed, the same could not have been allowed unless the petitioners satisfied the conditions precedent therefor in proviso to Order 6 Rule 17 of the Code of Civil Procedure. The Apex Court in the case of Vidyabai and Ors. Vs. Padmalatha & Anr., reported in AIR 2009 SC 1433, has observed thus : “It is couched in a mandatory form. The court’s jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.” 7. It can thus be clearly seen that the Apex Court in clear terms has held that the Court’s jurisdiction to allow an amendment is taken away unless the WP/6483/2010 4 conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of exercise of due diligence, the parties could not have raised the matter before the commencement of the trial. 8. In the present case, admittedly, the Suit was filed in November, 2002. The written statement is filed in February, 2006. In the written statement, a specific plea is taken that the land in question is legitimately owned by the Defendants by virtue of Sale Deed dated 23rd June, 1961. After the written statement was filed in the year 2006, a substantive amendment has been incorporated by the Petitioners in the year 2008. The petitioner could have very well raised the challenge to the said Sale Deed when a substantial amendment was incorporated in the year 2008. Not only this, but the learned trial Court has found that there was one more litigation pending between the parties bearing Regular Civil Suit No.2264 of 1985, wherein the parties to the present proceedings were also parties. In the said proceedings, a specific plea was taken by the present Defendants regarding their ownership on the basis of the Sale Deed dated 23rd June, 1961. The proceedings to that effect were filed on 20th April, 2001. It can thus clearly be seen that the Petitioners were put on notice regarding the execution of the Sale Deed as back as in the year 2001. Not only that, but in the year 2006, a specific averment is made in the written statement. It is thus clear that had the Petitioners be diligent enough, they could have firstly incorporated the challenge to the said Sale Deed WP/6483/2010 5 even at the stage of the filing of the Suit in as much as they were put on notice in the year 2001 itself in the earlier round of litigation. In any case, after the written statement was filed in the present Suit in the year 2006, when a substantial amendment was made in the year 2008, the amendment which is now sought to be incorporated could have been very well made. The present amendment, which is sought to be incorporated after the two witnesses are examined on behalf of the Plaintiffs, is squarely hit by the amended provisions of the Code of Civil Procedure. The learned trial Judge in para 6 of its order below Exhibit-96 passed in Regular Civil Suit No.1417 of 2002 has specifically observed that the proposed amendment cannot be said to be exercised with due diligence and was as such not complying the present provisions of law. 9. As held by the Apex Court in the case of Vidyabai and Ors. (supra), the learned Judge could not have entertained the application unless the conditions precedent therefor in the proviso to Order 6 Rule 17 of the Code of Civil Procedure were complied by the Petitioners. Apart from satisfying the said conditions, there is not even a whisper in the application as to how the amendment which is sought to be incorporated is permissible in view of amended provisions of the Code of Civil Procedure. WP/6483/2010 6 10. In view of the above, no error has been committed by the learned trial Judge so as to warrant an interference of this Court to exercise the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. 11. The Writ Petition is rejected. [B.R. GAVAI, J.]