1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 7922 OF 2009 Narayan S/o Harchandra Charande, Age: 35 years, Occu.: Agriculture, R/o: Khadak Wagalgaon, Ta.Gangapur, District: Aurangabad. ... PETITIONER VERSUS 1. Bansi Singh S/o Kishan Singh, Age: Major, Occ.: Agriculture, R/o: Zhodegaon, Tq. Gangapur, Dist. Aurangabad. 2. Krishna Singh S/o Bansi Singh, Age: Major, Occ.: Agriculture, R/o: Zhodegaon, Tq. Gangapur, Dist. Aurangabad. 3. Sudam Singh S/o Bansi Singh, Age: Major, Occ.: Agriculture, R/o: Zhodegaon, Tq. Gangapur, Dist. Aurangabad. 4. Heerabai W/o Bansising, Age: Major, Occ.: Agriculture, R/o: Zhodegaon, Tq. Gangapur, Dist. Aurangabad. 5. The Tahsildar, Tq. Gangapur, Dist. Aurangabad. ... RESPONDENTS *** Mr. A. S. Bajaj, Advocate for the Petitioner. 2 Mr. P. F. Patni, Advocate for Respondent Nos.1 to 4. Mr. S. N. Kendre, A.G.P. for Respondent No.5. *** CORAM: S. B. DESHMUKH J. DATED:- 6th JANUARY, 2010. ORAL ORDER: 1. Heard learned counsel for the parties. 2. Rule. Rule made returnable forthwith and heard finally by consent of the parties. 3. Petitioner is the plaintiff in Regular Civil Suit No.593 of 1997. During the pendency of the suit, petitioner/ plaintiff filed an application seeking amendment under Order 6 Rule 17 of the Code of Civil Procedure, [the Code, for short]. Said application was at Exhibit-27 in Regular Civil Suit No.593 of 1997. This application has been opposed on behalf of the Respondent/ defendants. After 3 hearing the parties, learned Civil Judge, Senior Division, Aurangabad rejected the application by the order passed on 21st August, 2009. It is this order which is impugned in this writ petition by the plaintiff in the suit. Copy of plaint in Regular Civil Suit No. 593 of 1997 is filed on record Annexure- A, page 10. Suit seems to be for perpetual injunction, seeking decree against Respondent Nos.1 to 4, obstructing the plaintiff from laying underground water pipeline from river Shivana, to plaintiff's land Gat No.18, situated at Khadak Wagalgaon, Taluka Gangapur through land Gat Nos.7 and 9 and for perpetual injunction restraining the Respondent No.5 from cancelling the permission for lifting water from Shivana river for irrigating the plaintiff's land Gat No.18. It is necessary to refer brief pleadings 4 raised by the plaintiff/ petitioner in the suit. 4. According to the petitioner, he is owner and possessor of land Gat No.18, admeasuring 20 Acres 3 Gunthas, to the extent of 8 Acres. The defendant Nos.1 to 4 are private persons and defendant No.5 is the Tahsildar, Gangapur. In para 2 of the plaint, it has been pleaded that the plaintiff's land Gat No.9 is situated at village Khadak Wagalgaon. To the estern side of plaintiff's land Survey No.9, land Gat No.7 owned by defendant Nos.1 to 4 is situated. Whereas, the river Shivana is on the East of land Gat No.7. Thus, it appears that in between River Shivana and plaintiff's land Gat No.9, land Gat No.7 owned by defendant Nos.1 to 4 situates. Plaintiff decided to irrigate his land from the Shivana river water. Section 49 of the Maharashtra Land 5 Revenue Code, 1966 provides the procedure for seeking permission from the competent authority i.e. the Tahsildar of the area. Over the years, the regulation of water from various sources is being looked after by other authorities of the irrigation department apart from the Tahsildar of the area. In other words, taking water from the water sources, ordinarily owned by the State Government, is one aspect of the matter controlled and regulated by the irrigation department of the State and procedure for excavating and/ or laying down underground pipeline for irrigation purpose is the matter governed by section 49 of the Maharashtra Land Revenue Code, 1966. 5. Plaintiff has pleaded that the Executive Engineer, Irrigation Department, Aurangabad issued permission on 14th January, 1997 in favour of the 6 plaintiff for lifting the water from Shivana river to irrigate his land to the extent of 2 Hectare out of land Gat No.18 for the period of ten years. Plaintiff applied and accordingly Tahsildar also granted permission for laying down underground pipeline. According to the plaintiff, such permission was granted by the Tahsildar along with the map showing the details and course of pipeline to be laid. Plaintiff has further pleaded in para 4 that actual digging work and laying underground pipeline was started by the plaintff on 11th April, 1997. He was required to seek assistance of police from the Tahsildar/ Executive Magistrate. Some allegations are made against Respondent No.5. According to the plaintiff, the defendants have obstructed the work of laying down of the pipeline. They claim that Tahsildar 7 did not grant such permission. Some xerox copy of the letter was also procured by the defendants. The plaintiff expressed his apprehension in the pleading, made in para 5, that because of the apprehension and conduct of Tahsildar, the Tahsildar was required to be joined as defendant no.5. In para 8, cause of action, according to the plaintiff, arose on 7th July, 1997 when the defendant Nos. 1 to 4 obstructed the plaintiff in carrying out the work of laying underground pipeline through Gat No.7. 6. The suit seems to had been filed on 11th July, 1997. The application, seeking amendment, indisputably, has been filed on 27th August, 2008. With the assistance of learned counsel for the parties, I have seen the application seeking amendment filed by the plaintiff under Order 6 Rule 17 of the Code. Para 8 3 of the application makes reference to the permission granted by the Tahsildar on 17th March, 1997 which expired on 30th June, 2007. According to the pleadings, in this para, renewal of the permission was obtained on 21st August, 2007 from the authorities concerned for the period of eighteen years i.e. up to 30th June, 2025. A statement is made that the required charges have been deposited by the petitioner/ plaintiff. Amendment, which is sought, is mentioned in this application as para 5A and 5B. 7. Reply, objecting the amendment application, was filed by the defendant. Exhibit-C is the copy of reply. In para 3, it has been contended by the Respondent/ defendant that the suit is based upon alleged cause of action of the year 1997 i.e. the date of filing of the suit. The cause of action for amendment in the suit is not available 9 and therefore the amendment sought to be added in the year 2007, cannot be allowed to be incorporated. According to the defendant, the application is totally outside the scope of Order 6 Rule 17 of the Code. Proposed amendment is totally malafide one. Grievance is raised that there is no indication in earlier pleadings about the so called Bhudki (small well). Now the plaintiff wants to add event of 1997, the amendment is outside the scope of the suit and the nature of inquiry. In the suit, the nature of the inquiry was only with reference to right to lay underground pipeline only and by amendment the inquiry is now tried to be shifted towards Bhudki (small well). The application was thus objected and sought to be dismissed. The learned Judge, as mentioned in the foregoing paragraphs, rejected the application. 10 8. Mr. Patni, the learned counsel for the Respondent Nos.1 to 4 relied on a judgment of Full Bench of Madrass High Court in the matter of "Kumarswami Gounder and others V/s D. R. Nanjappa Gounder (dead) and others" reported in AIR 1978 Madras 285. As can be noticed from the opening para of the judgment of the Full Bench, it was a reference before the Full Bench in view of the conflict of opinion on the question, whether section 8 of the Hindu Succession Act, 1956 is applicable to a case where a husband died before the Act came into force and his widow inherited his properties, but was not possessed of those properties and died subsequent to the commencement of the Act. It appears from para 18 of the judgment of the Full Bench that plaintiffs therein had applied for amendment of the plaint in C.M.P. 9869 of 1977. Considering the 11 earlier pleadings, in that suit and the amendment sought by the plaintiffs therein, in para 19, opinion has been recorded that "We are also of opinion that the application for amendment is an afterthought and therefore, lacks bona fides". Court also opined that "it would be hazardous to accept such an application for amendment to a plaint on the only ground of passage of time and change of circumstances, for that would run counter to the essential ratio governing the principles of amendment of pleading, which is that no amendment can introduce a cause of action which was never thought of originally or could not have been thought of earlier and which is diametrically opposite to that stated in the original plaint. In my view, ratio of the judgment of Full Bench is not applicable to the facts in the case on hand. 12 9. Another judgment relied upon by the learned counsel for the Respondent Mr. Patni is in the matter of "Vineet Kumar V/s Mangal Sain Wadhera" reported in AIR 1985 SC 817. Here, in this case, facts have been listed by the Honourable Supreme Court in para 2, 3 and 4 of the judgment. Mr. Patni, learned counsel, took me through paragraph 16 of the reported judgment. Here, the Honourale Supreme Court has held in para 16 that "Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation. Para 15 of the judgment of the Honourable Supreme Court is more 13 important and the same reads: "15. It may be argued that the Court had to decide the case on the basis of cause of action that accrued prior to the date of filing the suit and not on a new cause of action, but this question need not detain us as it is covered by decision of this Court, in Pasupati Venkateswarlu v. Motor and General Traders, (1975) 1 SCC 770 (AIR 1975 SC 1409 at p. 1410). Dealing with a similar question this Court observed: "It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistres of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, if 14 brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies beinding the rules of procedure, where no specific provision or fairplay is not violated, with a view to promote substantial justice - subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling, resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the 15 party just and meaningful as also legally and factually in accord, with, the current realities, the Court can, and in may cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed." 10. In the case on hand, plaintiff desires to irrigate his agricultural land from the Shivana river water. Water source is controlled by the State Government. A topography or pleadings raised by the plaintiff in suit, which have been referred to in the foregoing paragraphs, shows that land of the defendant Gat No.7 situates in between the land of the plaintiff Gat no.9 and Shivana river. If plaintiff is permitted to take the water from Shivana river lawfully, in that circumstance, 16 except laying down underground pipeline, no other method can be adopted. Such permission has been granted by the Tahsildar, pleading is made in para 2 of the plaint to that effect. Grant of permission, made by the irrigation department, initially for some ten years is also a matter of pleading. Grant of renewal of same permission till 2025 with specific date now is tried to be pleaded by the plaintiff. It is a matter of policy adopted by the State Government and subsequent event. However, fact remains that it is a subsequent event. The laying down pipeline, according to the plaintiff, now, is a matter of fact. Pipeline requires maintenance. No pipeline lawfully laid can have indefinite period of life span without maintenance. It is a matter of common knowledge and experience of the agrarian community and 17 even the authorities of the State Government. Much capital is made by counsel Mr. Patni that there is no reference of Bhudki (small well). In fact, Bhudki (small well) is a colloquial use of the word by the agrarian community. It is not that every time and for every crop water from Shivna river straightway is to be lifted by the petitioner/ plaintiff and his land is to be irrigated. It is a matter of common knowledge that crop(s) require water as per the time schedule and requirement. It depends on many factors. In that circumstances, if plaintiff felt it necessary to have some small water storage viz. Bhudki and if that is sought to be pleaded by amendment, that cannot be made capital of saying that nature of the suit is being changed and/ or inquiry which was required to be done by the Court on the 18 date of filing of the suit is changed. The allegation of the plaintiff/ petitioner is that such obstruction is recently raised by the defendants when he tried to carry out repairs and maintenance to the pipeline. If the defendants contend such alleged change of cause of action in that circumstances they cannot corner the petitioner and request for dismissal of the application on that ground. In my view, the grounds of resistance for amendment application, raised by the present Respondents/ defendants, ought to have been turned down by the trial Court. 11. Amendment always is a matter of concern and scrutiny by the Courts. Now it is accepted fact by all of us that litigation in civil Court is not only long drawn but then simply is ageless. In the case on hand, suit was filed on 11th July, 1997. The suit, according to 19 Mr. Patni, on instructions, is on the stage of issues. I have considered para 16 and 15 of the Supreme Court judgment pointed by learned counsel Mr. Patni. In my view, if both paragraphs are read together, in the facts of the present case, that judgment helps the petitioner/ plaintiff. 12. It would be appropriate to refer judgment of the Supreme Court in the matter of "Revajeetu Builders and Developers V/s Narayanaswamy & Sons & Others" reported in 2009 (7) Supreme 333. In this judgment, Honourable Supreme Court has taken survey of earlier judgments of the Honourable Supreme Court. Following conclusions have been ultimately laid down by way of statement of law by the Honourable Supreme Court. They are reproduced herein below: "(1)Whether the amendment 20 sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigations; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application." 13. In this view of the matter, I am inclined to allow this writ petition for the aforesaid reasons. 14. Writ petition is allowed. The order impugned is quashed and set aside. 21 Application filed by the petitioner/ plaintiff, seeking amendment, is allowed. Respondent/ defendant is permitted to file additional written statement in accordance with the provisions of law. 15. Rule accordingly is made absolute in above terms, without any order as to costs. [S.B.DESHMUKH, J.] Dated:06/01/2010. ans/7922 22 WRIT PETITION NO.: OF 200 Date of decision: 6th JANUARY, 2010. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE