1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CIVIL REVISION APPLICATION NO. 69 OF 2009 1. Vishwanath s/o Krishinaji Suryawanshi, age 70 years, occ. Agril., r/o Babalsur, Tq. Omerga, District Osmanabad ...Petitioner VERSUS 1. The State of Maharashtra, through the Collector, Osmanabad, 2. The Special Land Acquisition Officer, Manjara Project, Osmanabad ...Respondents ..... Shri Vivek Ingale, advocate for the petitioner Shri M.L.Dharashive, AGP for the respondents. ..... Coram : ShrihariI P. Davare, J. Dated : 8 th July, 2009. 2 ORAL JUDGMENT : 1 Perused. 2 Rule. Rule is made returnable forthwith. With the consent of the learned counsel for the parties, this Civil Revision Application is taken up for final hearing. 3 In this Revision Application, challenge is to the correctness and legality of the order passed by learned Joint Civil Judge, Senior Division, Omerga below Exh.14 in Land Acquisition Reference No. 436 of 2005 on 19.6.2008, thereby rejecting the application Exh.14 for amendment. 4 The petitioner claimed to be the owner and possessor of the land Survey No. 172, situated at village Babulsur, Taluka Omerga, District Osmanabad. The said land of the petitioner was acquired for rehabilitation of village Babulsur, Taluka Omerga, District Osmanabad in the year 1994. The respondents have passed the award in respect of said land on 2.8.1996. The petitioner/claimant had withdrawn the said amount under protest and filed Land Acquisition Reference No. 477 of 1998 which was subsequently numbered as 436 of 2005 before the learned Civil 3 Judge, Senior Division, Osmanabad. In the said Land Acquisition Reference the petitioner calculated the claim at Rs. 32,20,000/-, but restricted his claim up to Rs.1,00,000/- and paid court fee of Rs.1,650/- instead of Rs.7,500/-. 5 After transfer of the said Land Acquisition Reference to the court of Civil Judge, Senior Division, Omerga, the petitioner preferred an application for amendment Exh.14 on 24.7.2007 and thereby sought the permission to amend the claim clause, court fee clause and para no.15 of the Land Acquisition Reference and expressed his readiness and willingness to pay the deficit court fee. However, the learned Civil Judge, Senior Division, Omerga rejected the said application for amendment Exh.14 on 19.6.2008. Being aggrieved by the said order dated 19.6.2008 passed by the learned Civil Judge, Senior Division, Omerga below Exh.14 in Land Acquisition Reference No. 436 of 2005 the petitioner has preferred the present Civil Revision Application challenging its correctness and legality. 6 Heard both the learned respective counsel for the parties. 7 The learned counsel for the petitioner canvassed that 4 as reflected in the Land Acquisition Reference the applicant had calculated his claim at Rs.32.20,000/- at the time of filing the Land Acquisition Reference, but restricted his claim up to Rs.1.00,000/- due to financial difficulties and paid court fee of Rs.1,650/- thereon, but expressed readiness and willingness to pay the deficit court fee and, therefore, it is submitted by the petitioner that the petitioner was well entitled to amend the prayer clause, court fee clause and para no.15 of the Land Acquisition Reference by way of application preferred by him Exh.14 on 24.7.2007. It is pointed out that the petitioner has categorically stated in the said application that at the time of filing of the petition the claimant restricted his claim to Rs.1,00,000/- due to financial difficulties and now the claimant is ready and willing to pay the deficit court fee in view of the proposed amendment in the prayer clause. Hence, it is submitted by the learned counsel for the petitioner that application Exh.14 was required to be allowed in the interest of justice and the lower courts passed erroneous order and erred in rejecting the said application. 8 Learned counsel for the respondents countered the said argument and submitted that as per para no.15 of the Land Acquisition Reference No. 436 of 2005 the petitioner himself had restricted his claim up to Rs.1,00,000/- and paid court fee of Rs. 5 1,650/- thereon and, therefore, impliedly the petitioner abandoned his remaining claim and now the petitioner cannot claim the balance amount of claim by way of proposed amendment as per application Exh.14. It is also submitted that no specific reasons were mentioned in the application Exh.14 for the delay in preferring the application for amendment and, therefore, he submitted that the lower court rightly rejected the said application and no interference therein is warranted. 9 Considering the rival submissions, at the out set on perusal of the contents of Land Acquisition Reference No. 436 of 2005, it is seen that the petitioner/claimant had calculated the enhanced claim at Rs.32,20,000/- and same was mentioned in the said application. However, he restricted his claim up to Rs. 1,00,000/-, upon which he paid court fee of Rs.1,650/-. However, simultaneously he has averred that he is ready to pay the deficit court fee. Hence, it is not the position that the claim of the petitioner/claimant for the enhanced amount of Rs.32,20,000/- is after thought, since he has already calculated the said amount at the time of filing his claim application itself. However, he restricted his claim at that time up to Rs.1,00,000/- and paid court fee thereon of Rs.1,650/- at that time. Subsequently, by way of amendment application Exh.14 preferred by him on 24.7.2007 he 6 has stated that at the time of filing of the said petition he was in financial difficulties and, therefore, he claimed the amount of Rs. 1,00,000/- only, but now he is ready and willing to pay the deficit court fee and prayed for the amendment as set out in the said amendment application and claimed the said enhanced amount of Rs.32,20,000/- and expressed his readiness and willingness to pay the deficit court fee thereon. 10 Hence, it is amply clear that the petitioner/claimant although restricted his claim up to Rs.1,00,000/- and paid court fee of Rs.1,650/- thereon at the time of filing the said claim petition, he did not categorically abandon the balance amount of claim. Moreover, by way of restricting the claim up to Rs. 1,00,000/-, there cannot be implied abandonment of balance amount of claim as contended by the learned counsel for the respondents, since, the petitioner has categorically averred at the time of filing of Land Acquisition Reference itself that the claimant is ready and willing to pay the deficit court fee. 11 Hence, in view of the said position, there is no substance in the contention raised by the learned counsel for the respondents in that respect and the petitioner/claimant can very well restrict his claim at the time of filing of the Land Acquisition 7 Reference, but subsequently can claim the balance amount of claim by way of amendment. Moreover, the petitioner has specifically averred in application for amendment Exh.14 that due to financial difficulties the claimant claimed amount of Rs. 1,00,000/- and paid court fee of Rs.1,650/- thereon and now the claimant intends to pay deficit court fee and intends to amend the claim clause, court fee clause and para no.15 of the Land Acquisition Reference. Therefore, it is apparently clear that the petitioner has categorically put forth the reason for restricting his claim up to Rs.1,00,000/- at the time of filing the Land Acquisition Reference i.e. financial difficulties and now he intends to claim the balance amount of enhanced claim and intends to amend the prayer clause and other necessary clauses and is ready and willing to pay the deficit court fee thereon, which is required to be permitted in the interest of justice, since no prejudice would be caused to the respondents and the respondents would get the due opportunity to meet with the said proposed amendment. Thus there is no substance in the contention raised by the learned counsel for the respondents, in that respect also. 12 Besides that, it is reported that Land Acquisition Reference is not at the evidence stage and as per amended Order 6 Rule 17 of the Code of Civil Procedure, the court may at any 8 stage of the proceeding allow either party to alter or amend his pleadings in such manner and on such terms as may be just and such amendment can be made as may be necessary for the purpose of determining the real questions in controversy between the parties prior to commencement of the trial. Therefore also, since the trial has not been commenced in the present Land Acquisition Reference, the proposed amendment sought by the petitioner is required to be allowed in the interest of justice to determine the real questions in controversy between the parties and, therefore, the impugned order dated 19.6.2008 whereby amendment application Exh.14 was rejected, is erroneous and, therefore, same is required to be quashed and set aside. 13 Apart from the said position, it is necessary to allow the petitioner/claimant to carry out the proposed amendment as sought by him vide application Exh.14 dated 24.7.2007 to avoid the multiplicity of the proceedings and as mentioned herein above no prejudice would be caused to the respondents, since they would get the opportunity to meet with the proposed amendment and, therefore also the present Civil Revision Application is required to be allowed by quashing and setting aside the impugned order. 9 14 In the result, Civil Revision Application No. 69 of 2009 is allowed in terms of prayer clause ‘C’ thereof and the impugned order passed by the leaned Joint Civil Judge, Senior Division, Omerga below Exh.14 in Land Acquisition Reference No. 436 of 2005 on 19.6.2008 thereby rejecting the application Exh.14 stands quashed and set aside and the petitioner/claimant is permitted to carry out the amendment as per application below Exh.14 dated 24.7.2007 within the period of two weeks from the date of receipt of the writ of this order by the said court. Rule is made absolute accordingly. In the circumstances, there shall be no order as to costs. (Shrihari P. Davare, J.) dbm/cra69.09