1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.: 117 OF 2009 IN WRIT PETITION NO.: 2261 OF 2009 Mrs. Manisha W/o Bhimsingh Pardeshi, Age: 37 years, Occu.: Agriculturist & Household, R/o At Post Wade, Tal. Bhadgaon, District: Jalgaon. Through her G.P.A. holder Shri Bhimsingh S/o Shivlal Pardeshi, R./o: V-1, 402, Ashraya Coop. Housing Society, Ashok Van, Savarpada, Borivali (East), Mumbai-400 066. ... APPELLANT [ORIG. PLAINTIFF] VERSUS 1. Mrs. Vimalbai W/o Amarsingh Pardeshi, Age: 56 years, Occu.: Household, 2. Amarsingh S/o Kisan Pardeshi, Age: 60 years, Occu.: Agriculturist, Both R/o At Post Wade, Tal. Bhadgaon, Dist. Jalgaon. ... RESPONDENTS [ORIG. DEFENDANTS.] *** Mr. Pradip R. Patil, Advocate for the Appellant. *** CORAM: S. B. DESHMUKH & S. S. SHINDE, JJ. Dated: 10th July, 2009. ORAL ORDER [Per Deshmukh, J.] 1. We have heard learned counsel Mr. P. R. Patil for the Appellant. 2. Before adverting to the submissions of learned counsel Mr. Patil for the Appellant, we would like to list the admitted facts in this appeal. 2 (a) The Appellant before this Court is the original plaintiff in Special Civil Suit No.76 of 2005. This suit is filed on 24th March, 2005. The suit is for declaration, permanent injunction and in the alternate possession as well as mesne profits. (b) On receipt of the suit summons, defendants/ respondents entered appearance and filed their written statement, copy of which is on record Exhibit-5 (page 42). This written statement was filed on 13th June, 2005. (c) Issues were framed by the trial Court on 27th September, 2005 Annexure-K (Page 46). (d) Evidence, by way of affidavit, under Order XVIII Rule 4, on behalf of Appellant/ plaintiff Annexure-L, page 47 (affidavit of husband of the plaintiff) was filed in the trial Court on 25th October, 2005. One more affidavit of one Mr. Ishwar Pardeshi, by way of evidence on behalf of the Plaintiff No.2 Exhibit-M (Page 53) was filed on 4th March, 2006. Third affidavit of Mr. Tarachand Shivlal Pardeshi was filed on behalf of the plaintiff Annexure-N filed on 30th June, 2006. (e) Affidavit of defendant No.1, on behalf of defendant No.1, by way of evidence Annexure-O of one Mrs. Vimalbai W/o Amarsingh Pardeshi was filed. Affidavit of D.W.2 Mr. Amarsing Pardeshi Exhibit-P was filed on 2nd December, 2006. (f) Mr. Patil, learned counsel for the Appellant fairly concedes that oral evidence of plaintiff and defendants was over and matter was posted for arguments. (g) Application seeking amendment to the plaint Exhibit-B, page 14, came to be filed on behalf of the plaintiff on 19th April, 2008. 3 2. Learned trial Court, after hearing the parties, passed order below Exhibit-98 i.e. application filed by the plaintiff seeking amendment to the plaint. By this order, passed below Exhibit-19, the trial Court dismissed the application with no order as to costs, and suit was adjourned for final hearing. This order came to be passed by the trial Court on 29th December, 2008. The trial Court, while dismissing the application, has considered the provisions laid down under Order VI Rule 17 of the Code of Civil Procedure. Judgment of the Supreme Court in the matter of "Union of India V/s Pramod Gupta and others" reported in (2005) 12 SCC 1 was considered by the trial Court. The trial Court referred the cross examination of the plaintiff. The trial Court has observed that the plaintiff himself has produced the deed in question Exhibit-78 on 25th October, 2005. Further the trial Court has observed that "However plaintiff or plaintiffs power of attorney holder has not taken any care about the said averments as mentioned in this amendment application. Here plaintiff has not given any reason why plaintiff has failed to bring the above averments into her plaint in time or at the time of filing of this suit." Further, the trial Court has observed that "Now parties have given their complete oral evidence along with their documents." With these observations, the trial Court proceeded to pass order and dismissed the application, as we have noticed in the forgoing paragraph. 3. This order passed by the trial Court was challenged by filing Writ Petition No.2261 of 2009. Annexure-A, page 11 is the copy of the order passed by the learned Single Bench of this Court on 29th April, 2009. Learned Single Bench rejected the writ petition, filed on behalf of the plaintiff/ appellant. This order, passed by the learned Single Bench is 4 challenged in this Letters Patent Appeal. 4. Mr. Patil, learned counsel for the Appellant/ plaintiff urged that the aim and object of the provision laid down under Order VI Rule 17 of the Code of Civil Procedure [the Code, for short] i.e. amendment to the pleadings, needs to be considered. The Court has to have liberal approach while considering amendment application. According to him, resolution of the controversy among the parties is one of the object of the amendment. Prevention of multiplicity of the litigation can be considered to be another object of the alteration or amendment to the pleadings of the parties. He submits that, if the plaintiff/ appellant is put on some costs, the Appellant/ plaintiff is ready to make payment of such costs. He has also invited our attention to page 23 of the compilation i.e. document of conditional sale deed dated 15th September, 2000. According to him, the trial Court ought to have allowed the application for amendment. In support of his submissions he relied on judgments (i) in the matter of Bharat Petroleum Corporation Ltd. V/s Precious Finance Investment Pvt. Ltd." reported in 2007 (1) Mh.L.J. 331, (ii) in the matter of "North Eastern Railway Administration, Gorakhpur V/s Bhagwan Das (Dead) By LRS." reported in (2008) * SCC 511 and (iii) in the matter of "Usha Balashaheb Swami and others V/s Kiran Appaso Swami and others" reported in (2007) 5 SCC 602. He has also relied on a judgment in the matter of "Chander Kanta Bansal V/s Rajinder Singh Anand" reported in (2008) 5 SCC 117. 5. We have given our anxious consideration to the submissions of the learned counsel Mr. Patil. Indisputably, proviso to Order VI Rule 17 has been brought on statute from 1st July, 2002. In the case on hand, we have noticed 5 the various dates from the date of filing of the suit till the date of filing of the application for amendment in the forgoing paragraphs. Mr. Patil also does not dispute this position. This proviso to Order VI Rule 17 has been considered and interpreted by this Court and the Supreme Court as well. Judicial pronouncements i.e. judgments of the High Court and Supreme Court have to be considered on the facts. The ratio decidendi of the judgment has binding force. Precedential value is a matter governed by Article 141 of the Constitution of India. In this back ground, we shall now turn to consider the pleadings in the application seeking amendment, filed by the Appellant/ plaintiff Annexure-B. . This application consists of about 5 paragraphs. With the assistance of learned counsel for the Applicant/ plaintiff, we have considered this application in its entirety. According to learned counsel Mr. Patil, the appellant/ applicant, in para 1 of the application, has tendered explanation that the necessary pleadings could not be made in the suit itself on account of inadvertence. According to him, this ground is sufficient and trial Court ought to have considered this ground and allowed the application. Learned Single Bench of this Court, while considering the writ petition, has observed, in its order that the application seeking amendment is bereft of any ground especially due diligence on the part of the Appellant/ plaintiff. Such observation of learned Single Bench of this Court, we have noticed, in para 5. We are in agreement with the learned Single Bench so far this part of the observation is concerned. 6. The judgment of learned Single Bench of this Court is made available by learned counsel Mr. Patil for our perusal. It is in the matter of Bharat 6 Petroleum (supra). With the assistance of learned counsel Mr. Patil, we have gone through this judgment. In the matter of Bharat Petroleum (supra) it appears that the suit was filed on 11th November, 2003, the defendant, after entering appearance in that suit, filed written statement on 12th January, 2004. On 15th March, 2004, issues were framed and evidence of the plaintiffs' witness was recorded. On 20th October, 2005, at the stage of recording the evidence of defendant, defendant filed an application seeking amendment of the written statement, which was registered as Interim Notice No.414 of 2005 in T.E. & R.C.S. No.257-279 of 2003. The learned Single Bench of this Court has considered the submissions of the counsel appearing in the reported judgment. Para 35 of the judgment of learned Single Bench in the matter of Bharat Petroleum (supra) in our view is important. There, the learned Single Bench of this Court has observed that "In the present case the defendants in their application seeking amendment and in particular paragraphs 5, 6 and 7 thereof have explained the circumstances against which they filed the application. In the paragraph, the learned Single Bench has considered explanation tendered for the phrase "due diligence". In para 39, learned Single Bench of this Court has recorded its satisfaction in the words "in the present case as observed earlier the explanation offered, in my opinion, is sufficient to hold that despite due diligence the defendants could not have raised the matter before the commencement of trial and that no prejudice whatsoever will be caused to the plaintiffs if the amendment is allowed." On this background order came to be passed by the learned Single Bench in the matter of Bharat Petroleum (supra). In the case on hand, we have observed in the foregoing paragraphs 7 that we are in agreement that the observations so far as the phrase "due diligence" is concerned. We may add that from page 20 of the compilation we have noticed that the learned Judge has observed that the evidence of both the parties was closed. Predecessor in office of the Presiding Judge had heard final arguments of the suit on 9th April, 2008 and the suit was posted for judgment on 19th April, 2008 and on that date the plaintiff taken out this amendment application. Therefore, in our view, the judgment of the learned Single Bench has no application so far facts of the case on hand are concerned. 7. The judgment of the Supreme Court in the matter of "Usha" (Supra) has also considered the aim and object of the amendment to the pleadings i.e. Order VI Rule 17 of the Code. It is held by the Supreme Court that "bare perusal of Order 6 Rule 17 of Civil Procedure Code it is clear that the Court is conferred with power, at any stage of the proceeding, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the plea or question in controversy between the parties. It is further observed that the Court should he liberal in granting the prayer for amendment of the pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one. In the matter of Usha (supra) Honourable Supreme Court has noticed and recorded the facts in paras 1 to 10. There, the Special Civil Suit No.503 of 1996 was filed in the court of learned Civil Judge, Senior Division, Kolhapur. It was a suit for partition and separate possession of the suit properties. Defendants Nos.1 to 7 in that suit entered appearance and filed written statement supporting the case of the plaintiff. Written statement 8 was filed by the Appellants, in that proceedings on 28th February, 2003. Therefore, initially application for amendment of the written statement was filed on 18th June, 2003 which was contested by the original plaintiff and was allowed by the learned Civil Judge, Senior Division. Said order was challenged by filing writ application before the High Court at the instance of the plaintiff. Said writ petition was rejected. However, liberty was granted to the Appellant therein to file fresh application for amendment of the written statement. In view of said liberty, defendants, in that suit, had filed application for amendment of the written statement on 12th March, 2004 which was contested by the plaintiff. Learned Civil Judge, Senior Division, Kolhapur allowed the application. Said order was carried to the High Court. This Court, set aside the order of the trial Court and rejected application for amendment of the written statement on the ground that since the Appellants had categorically admitted in their written statement that the Respondents were entitled to half share in the suit properties, it was not permissible for them to withdraw such admission by amendment of written statement as that will amount to totally displacing the case of the plaintiff causing irretrievable prejudice to him. With these facts, the Honourable Supreme Court has considered the provision laid down under Order VI Rule 17 of the Code. In para 27 of the judgment, the Supreme Court has observed that it was neither a case of withdrawal of the admission made in written statement nor a case of washing out the admission made by the appellant in the written statement. As noted herein earlier, by said amendment the Appellant had kept the admissions in-tact and only added certain additional facts which need to be proved by the plaintiff and defendant Nos.2 to 8 to keep the shares in the suit 9 properties alleged to have been admitted by the Appellants in their written statement. Accordingly, we are of the view that the Appellants are only raising the issue regarding the legitimacy of the plaintiff and defendant Nos.3 to 7 to inherit the suit properties as heirs and legal representatives of their deceased father. With these observations, pertaining to the facts and pleadings of that case, the Honourable Supreme Court disposed of the appeal. It is significant to notice that the Supreme Court in para 29, in the matter of Usha (supra) has observed that - We are unable to sustain the judgment of the High Court rejecting the application for amendment of written statement on the ground that if such amendment was allowed it would seriously prejudice the plaintiff. There is yet another aspect of the matter. The trial Court on consideration of the written statement as well as the application for amendment of the written statement, in its discretion allowed the application for amendment of the written statement." Needless to mention that we are dealing with a case of amendment to the plaint and not written statement. Ratio of this judgment of the Supreme Court, in our view, does not apply to the facts available in the case on hand. 8. In the matter of North Eastern Railway (Supra) the Supreme Court has briefly stated the facts in para 2. It appears that it was appeal by North Eastern Railway Administration arising out of order dated 17th July, 2002 and 14th June, 2005 passed by the High Court of Uttaranchal. Order dated 17th July, 2002 had dismissed the second appeal filed by the Appellant therein in that matter on the ground that no substantial question of law arose for consideration of the Court. By order passed by the High Court dated 14th June, 2005, the High Court has dismissed one of the applications filed by the 10 Appellant in that second appeal under Order VI Rule 17 of the Code i.e. application seeking amendment to the written statement, on the ground that such an application cannot be entertained in the second appeal. Review of the said order was sought by the Appellant therein had been dismissed on 14th June, 2005. In para 4, it has been noted by the Supreme Court that by the order passed on 13th March, 2001 trial Court, in that matter, decreed the suit holding that Respondent in that proceeding is a bhumidhar and in possession of the suit land and the transfer of possession by the U.P. Government to the appellant was not proved. The first appeal taken out by the Appellant, in that proceeding, before the learned District Judge, was dismissed on 13th November, 2001. This order passed by the learned District Judge was challenged by the Appellant in that proceeding by filing second appeal before the Uttaranchal High Court. In the matter of North Easter Railway Administration (supra), in para 1 and 12 the Supreme Court has considered the provisions laid down under Order 41 Rule 27 of the Code. In para 12 the Supreme Court observed that "We also feel that even the application under Order 6 Rule 17 CPC has not been dealt with in its correct perspective and the High Court was in error in rejecting the same on the sole ground that such an application was not maintainable at the stage of second appeal." The Supreme Court, in para 16 has, on the back ground of the factual matrix available in that proceeding, referred the earlier provisions of Order VI Rule 17 of the Code [as it stood at the relevant time]. The reference in that para 16 is made to the judgment in the matter of "Pirgonda Hongonda Patil V/s Kalgonda Shidgonda Patil" reported in AIR 1957 SC 363. In our view, Order VI Rule 17, as it was available in the Code of Civil Procedure, at the 11 relevant time, i.e. while deciding the matter of Pirgonda (supra) stands altered. We may not say that there is a sea-change in the provision laid down under Order VI Rule 17 of the Code but then considering the pendency of the civil litigation in civil Courts some amendments have been brought on statute by the Central Legislature to curtail life of civil litigation which are made enforceable from 1st July, 2002. Proviso to Order VI Rule 17 is one of such amendment which came with the phrase "due diligence". Thus, reference of para 16 in the matter of North Eastern Railway (supra), in our view, does not help to the facts available in the case on hand. 9. In the case on hand, we have noticed all dates till 19th April, 2008, the day on which suit was posted for judgment and application was moved by the plaintiff seeking amendment. We are not satisfied that the plaintiff all along from the date of filing of the suit was due diligent till date of making the application for amendment. So far as prejudice to the other side is concerned, awarding of compensation always cannot be the phenomena, Defendants on 19th April, 2008 were supposed to hear the verdict from the Court. On that day, as we have noticed, application came to be moved in by the plaintiff. 10. We see no substance in this letters patent appeal. Letters Patent Appeal stands dismissed. [ S. S. SHINDE, J.] [S. B. DESHMUKH, J.] Dated:10.07.2009. ans/117