1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 706 OF 2009 M/s. Jalna Land Developers ...Petitioner Versus Harishchandra Satyanarayan Bhurewal and others ...Respondents ..... Mr. G.D. Shaikh, advocate for the petitioner Mr. S.V. Gangapurwala, advocate for respondent Nos.4 to 7 ..... CORAM: S. S. SHINDE, J. DATED: 9TH SEPTEMBER, 2009 PER COURT:- 1 This writ petition is filed challenging the final judgment and order passed by the learned C.J.S.D. Jalna below Exh.41 in Special civil Sit No. 96 of 2002 on 12.9.2008. 2 The background facts of the case, as disclosed in the petitioner, are as under:- It is the case of the petitioner that the agricultural land gut No.22 totally admeasuring 12 Hectare 16 R jointly owned and possessed by respondent Nos. 1 to 3 being ancestral property. On 4.8.1994, 2 respondent No.1 to 3 have executed agreement to sale in favour of plaintiff firm and the plaintiff paid earnest amount to respondent No.1. On 3.8.1994, respondent No.2 executed an agreement to sale in favour of the plaintiff firm and plaintiff paid earnest amount to respondent No.2 and also executed registered general power of attorney in favour of the plaintiff. Respondent No.3 executed agreement to sale on 14.12.1994 in favour of the plaintiff firm and plaintiff paid earnest amount to respondent No.3 and also executed registered general power of attorney in favour of plaintiff. It is further case of the petitioner that respondent Nos. 1 to 3 jointly, during subsistence of agreement of sale and general power of attorney in favour of the plaintiff firm, illegally transferred the entire property to other persons. It is further case of the petitioner that immediately after getting knowledge the plaintiff filed Special Civil Suit No. 96 of 2002 against respondents for specific performance of contract of sale deed executed by respondent No.1, in the Court of learned C.J.S.D. Jalna on 19.12.2002. On 13.4.2005, after framing of issues, on the very next day the plaintiff filed application for amendment. In the said amendment application, plaintiff prayed to seek specific performance of agreement executed by respondent Nos. 2 and 3 in favour of plaintiff firm and also sought relief for addition of parties. It is further case of the petitioner 3 that amendment application is filed within a period of three years from the date of cause of action. To the said application, respondent Nos. 4 to 7 i.e. purchasers of the property from respondent Nos. 1 to 3 original land owners, did not file written statement. On 12.9.2008 the learned C.J.S.D. Jalna, rejected the application for amendment. Hence, this writ petition. 3 Learned counsel appearing for the petitioner submitted that on the date of filing of suit, the plaintiff had no knowledge about the said illegal transaction and therefore, the said purchasers, who have purchased the property were not parties to the earlier suit. It is contended that the purchasers are necessary parties and therefore, the plaintiff has sought to incorporate in the pleading as to specific performance of agreement executed by defendant Nos. 2 and 3 dated 3.8.1994 and 14.12.1994 respectively and cancellation of sale deed in favour of the proposed parties. Learned counsel further submitted that by the said amendment application, no prejudice would be caused to the respondents. The nature of the suit will not be changed by the said amendment. Learned counsel therefore, submitted that the trial court was not justified in rejecting the application for amendment to the plaint. Learned counsel further submitted that the refusal of amendment application resulted into miscarriage of justice, the order passed by the trial court holding that the amendment would prejudice the respondent and will change the nature of the suit has no basis. 4 Learned counsel further submitted that original suit is for relief of specific performance of contract. By way of amendment, the plaintiff only want to seek specific performance of two different agreement of sale in respect of same Gat No.22 and not other property and therefore, no question arises for seeking new relief. Learned counsel further submitted that from the date of cause of action for amendment, application is within limitation i.e. three years and therefore, though there is delay, which is not barred by law of limitation. Learned counsel further submitted that the trial court is not correct in holding that the petitioner can file separate suit against other by overlooking the fact of filing separate suit, would result into multiplicity of the litigation. Learned counsel further submitted that the defendant Nos. 1 to 3 jointly sold land Gat No.22, therefore, cause of action is the same as that of the suit pending before the trial court. Learned counsel in support of his contention has placed reliance on the reported judgment of this Court in Maganlal Harilal Doshi and Ors. Vs. Sarvadaman Mansukhlal Doshi and Ors, reported in 2003 (1) Mh.L.J. 390 and submitted that though the amendment is time barred, the said amendment can be allowed by compensating the respondents by way of costs. Learned counsel further placed reliance on another reported judgment of the Hon'ble Supreme Court in the case of Baldev Singh and Ors.Vs. Manohar Singh and Anr, reported in 2006 (5) Mh.L.J. 634 and submitted that the amendment to the plaint and amendment to written statement not necessarily governed by the same principle. 5 The commencement of trial as used in proviso to Rule 17 of Order VI must be understood int he limited sense as meaning final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. Learned counsel further invited my attention to the reported judgment of the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi and Ors. reported in 2006 (5) All M.R. (S.C.) 185 and submitted that the amendment application filed by the present petitioner ought to have been liberally allowed by the trial court. Learned counsel further invited my attention to the reported judgment of the Supreme Court in the case of Pankaja and Anr. Vs. Yellappa (Deie) by L.Rs. And Ors. reported in AIR 2004 SC 4102 and submitted that the amendment of pleading can be allowed in the appropriate cases, if that subserves cause of justice and avoids further litigation. Learned counsel for the petitioner therefore, submitted that the writ petition deserves to be allowed. 4 On the other hands, learned counsel appearing for the respondents 4 to 7 has invited my attention to para 3 of the Special Civil Suit No. 96 of 2002 filed by the present petitioner before the learned C.J.S.D. Jalna i.e. “the present petitioner was well aware that the respondent Nos. 2 and 3 have entered into an agreement to sale, however, the respondent Nos. 2 and 3 have also not followed the 6 terms of the agreement to sale and they have not executed the sale deed in favour of the plaintiff and the petitioner/original plaintiff wants to file separate suit against the respondent Nos. 2 and 3. Therefore, learned counsel would submit that the transaction between the petitioner and respondent Nos. 2 and 3,” was well within the knowledge of the present petitioner, at the time of filing of suit before the trial court, therefore, it could not be said that the petitioner was not aware about the said transactions. In fact there is solemn statement by the petitioner/original plaintiff that he want to file separate suit against respondent Nos. 2 and 3 therefore, learned counsel would submit that the amendment application is after thought and same was filed belatedly and the trial court has rightly rejected the same. Learned counsel submitted that the application filed by the petitioner does not disclose that he was prevented by sufficient cause in not bringing amendment before the trial is commenced. Learned counsel invited my attention to the recent judgment of the Hon'ble Supreme court in the case of Vidyabai & Ors. Vs. Padmalatha & Anr reported in AIR 2009 SC 1433 and submitted that in the said judgment the Apex Court has held that the date on winch the issues are framed, is the date of first hearing. Therefore, learned counsel would submit that the application for amendment filed by the present petitioner was after commencement of the trial and no diligence is shown in the application, therefore, the learned joint C.J. S. D. Jalna 7 has rightly rejected the application for amendment of the plaint. Learned counsel further invited my attention to the reported judgment of the Hon'ble Supreme Court in the case of Ajendraprasadji N. Pande & Anr Vs. Swami Keshavprakeshdasji N. & Ors, reported in 2007 AIR SCW 513 and submitted that the party which has filed application under Order 6 Rule 17, has to prove that inspite of due diligence, he could not have raised the matter before the commencement of trial. On the basis of the aforesaid pronouncement, he further submitted that the Apex Court in the said judgment has held that the trial commence when issues are settled and case is et down for recording of evidence. Learned counsel further invited my attention to the reported judgment of the Apex Court in the case of Rajkumar Gurawara (Dead) Through L.Rs. Vs. M/s. S.K. Sarwagi and Co. Pvt. Ltd. and Anr, reported in AIR 2008 SC 2303 and submitted that the amendment of plaint after commencement of trial is not permissible. Learned counsel would submit that the writ petition is devoid of any merits and the same be dismissed. 5 After hearing counsel for the petitioner and counsel for the respondents and after perusal of the impugned judgment and order as well as all relevant record and the reply filed by the respondents, I am of the considered view that the trial court has taken possible view. 8 On perusal of para 3 of the suit filed by the present petitioners, it is abundantly clear that the petitioner was aware about agreement to sale with respondent Nos. 2 and 3 and to that effect he has made statement in the plaint. Not only that but the petitioner has pleaded in the petition that he is going to file separate suit against respondent Nos. 2 and 3 and therefore, having been made solemn statement on oath in the plaint, that the petitioner is going to file separate suit against respondent Nos. 2 and 3, now it is not open for the petitioner to ask relief which he wanted to ask by way of filing separate suit. In para 13 of the impugned judgment the trial court has taken a note of the fact that the plaintiff seeks to introduce specific performance of the alleged agreement duly executed by defendant No.2 and 3 dated 3.8.1994 and on 14.12.1994 not connected with the pending suit and no relief in respect of claim in the suit. The court has further observed that the plaintiff has not sought permission of the court to sue in that respect. The court has further observed that amendment was sought after considerable lapse of time in the pending suit for specific performance of agreement executed by defendant Nos. 1 and 2 and therefore, by way of amendment application the plaintiff is introducing a new relief by way of amendment for which at the most the remedy open for him to file separate suit. If the findings given by the trial court in para 13 is perused 9 carefully, the petitioner herein has made solemn statement in para 3 of the plaint that he is going to file separate suit against respondent Nos. 2 and 3 and therefore, it was not open for the petitioner to ask relief by way of amendment by introducing the new relief. The trial court has rightly concluded that the remedy which is open to the petitioner was to file separate suit. The court has further in para 14 has observed that nature of amendment so sought introducing a new case in the plaint is in respect of different cause of action, therefore, application is not maintainable. In para 15 the court has held nature of the amendment sought by the plaintiff as per principles of pleading, law does not permit the plaintiff to incorporate such amendment in the plaint. Therefore, the trial court has rejected the application filed by the present petitioner. 6 Though learned counsel for the petitioner has submitted that the amendment application to be liberally allowed, in the background facts of this case that the petitioner himself has made statement in the plaint that he is going to file separate suit against respondent Nos. 2 and 3, it is not desirable to allow application for amendment. The Hon'ble Supreme Court in para 7 in the case of Vidyabai (supra) has observed that, by recent amendment to C.P.C. (Amendment Act 2002) the Parliament interalia inserted proviso to Order VI Rule 17 of C.P.C. which is coached in a mandatory form. 10 The court’s jurisdiction to allow such application is taken away unless the condition precedent are satisfied that it must come to the conclusion that inspite of due diligence the parties could not have raised the matter before the commencement of the trial. 7 On careful perusal of the facts of this case, it clearly appears that the petitioner herein was not able to fulfill precondition. The Apex Court in the aforesaid judgment has also held that the trial court on the date on which issues are framed is the date of first hearing. The provisions of C.P.C. envisaged taking of various pleadings at different stages of the proceedings. Filing of affidavit in lieu of examination in chief of the witness, would amount to commencement of the proceeding. In para 14 the court held that it is primary duty of the court to decide as to whether such an amendment is went to decide the real controversy between the parties, only if such condition is fulfilled, the amendment application is to be allowed. The court has further observed in the said para that proviso appended to Order VI Rule 17 of C.P.C. restricted the power of the court. The court’s jurisdiction in case of its nature, is limited. Thus jurisdictional fact has envisaged thereunder, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint. In para 16 the court further held that it is found that the trial court has neither 11 exceeded its jurisdiction nor any error of law has been committed it is not permissible in writ jurisdiction to upset the order passed by the trial court. I find considerable force in the arguments for learned counsel for the respondent that there are various pronouncement of the Hon'ble Supreme Court to hold that the trail commence when issues are settled and case is set down for recording evidence and the person filing application for amendment has to prove that inspite of due diligence he could not have raised the matter before the commencement of trial. 8 In my view, the petitioner should have brought the matter in the main plaint itself which they want to bring by way of amendment. The statement of the petitioners in the plaint that he want to file separate suit against respondent Nos. 2 and 3 itself shows that the petitioner was well aware about the transaction between the parties. That apart, the trial court has rightly held that if the amendment is allowed it will change the nature of the suit and the plaintiff is introducing a new relief by way of amendment. Therefore, in my considered view, viewed from any angle, the trail court has taken a possible view and not exceeded its jurisdiction or there is no error apparent on the face of record to invoke the writ jurisdiction under Article 227 of the Constitution of India. The Hon'ble Supreme Court in the case of Suryadeo Vs. Ram 12 and others reported in 2003 AIR SCW 3872 in para 38 held that the supervising jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied:- (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. A patent error is an error which is self evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take own view, the error be called gross or patent. The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to be act lest a gross failure of justice or grave injustice should occasion. 13 9 The Apex Court in the said case has further observed that the High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. 10 In view of the above circumstances, writ petition is dismissed. Civil application, if any, stands disposed of. Interim relief, if any, stands vacated. There shall be no order as to costs. *****