1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3730 OF 2007 Pandurang Vishwanaath Hailkar ...Petitioner vs. Mahadev Gopal Hailkar & Others ...Respondents Mr.U.B.Nighot for the petitioner Mr.P.G.Lad for respondent no.1 CORAM :A.S.OKA,J. DATE : AUGUST 28, 2009 P.C. 1 I have heard the submissions of the learned counsel for the parties. The parties were put to notice that the petition will be heard finally at the stage of admission. By this writ petition under Article 227 of the Constitution of India the challenge is to the Judgment and Order dated 14th December 2006 passed by the learned trial Judge by which an application for amendment of the plaint has been allowed. The petitioner is the original first defendant. The first respondent is the original plaintiff. A suit was filed by the first respondent for declaration that the property bearing No.135 situated at village Otur was of the exclusive ownership of the first respondent and that the defendants have no right to claim partition and possession. In the plaint, it is stated that the second defendant (second respondent herein) filed a suit for partition in the year 1965 in which a decree was passed. The allegation is that a collusive decree was obtained in the said suit. It is stated that 2 the third defendant (third respondent herein) preferred an appeal before the District Court against the said decree. The said appeal was dismissed and even the second appeal was dismissed subject to minor modifications. Thereafter, the decree passed in the said suit was put to execution. An objection was raised by the first respondent to the said execution proceedings. The said objection was overruled by the executing court. Therefore, the present suit was filed by the first respondent in the year 1977. 2 In the said suit of the year 1977, the first respondent-plaintiff on 28th November 2006 applied for the amendment of the plaint. By the amendment, the first respondent prayed permission for adding certain paragraphs to the plaint. It is alleged that the first defendant in the suit No.89 of 1965 filed his written statement on 24th November 1965. It is alleged that the first respondent herein was the second defendant in the said suit and he was deceived to file a pursis for adopting the written statement filed on 24th November 1965. By the amendment, it was sought to be contended that the certain properties which ought to have been subjected to the partition were not included in the earlier suit. It is alleged that the petitioner herein in the earlier suit did not implead necessary and proper parties. By the amendment, it was sought to be contended that the defendants in the present suit obtained the 3 decree in the earlier suit by practising a fraud. 3 The said application was objected to by the petitioner by filing a reply in which it was contended that the applications were earlier made by the first respondent-plaintiff at Exhibits 52 and 123 praying for similar reliefs and the said applications have been dismissed by the court earlier and the said orders have attained finality. Notwithstanding the said objections, the trial court allowed the said application by passing the impugned order. 4 The learned counsel for the petitioner has invited my attention to the earlier applications made by the first respondent at Exhibit 52 and Exhibit 123 and the orders of rejection passed on the said applications. He submitted that the applications at Exhibit 123 was filed July 2003 and more than four years thereafter, the present application has been filed. He submitted that more or less similar amendments were sought to be made by the earlier applications were not permitted by the trial court. He, therefore, submitted that the impugned order is perverse and the same deserves to be quashed and set aside. The learned counsel for the first respondent submitted that the present application for amendment was filed after perusing the record of the earlier suit No.89 of 1965 which was received by the trial court in November 2006. He submitted that in any case, in the plaint, a contention has already been raised that necessary and 4 proper parties were not impleaded in the earlier suit and therefore, by the amendment, the first respondent was desirous of setting out the names of the legal representatives of deceased Vishwanath who were not impleaded as a party to the earlier suit. He pointed out that the present amendment has been made for contending that the certain property which ought to have been made subject matter of the suit was not subject matter of the earlier suit. He, therefore, submitted that no interference was called for in the impugned order in extraordinary jurisdiction under Article 227 of the Constitution of India. 5 I have carefully considered the submissions. It will be necessary to refer to the applications at Exhibit 52 filed by the first respondent for amendment of the plaint. The said application was filed on 4th January 1999. In the said application for amendment it was contended that after demise of Vishwanath who was the first plaintiff in the said suit no.89 of 1965, all the legal representatives of Vishwanath were not brought on record. It is pointed out that the said Vishwanath had a daughter by name Vatsala who predeceased him and the names of the sons and daughters of the said Vatsala were not brought on record and thus a fraud has been practised. It was sought to be contended by the proposed amendment that necessary parties were not impleaded in the earlier suit. By a detailed order dated 17th July 5 1999, the said application was rejected by the trial court. 6 The application at Exhibit 123 was made by the first respondent-plaintiff on 22nd April 2002. By the said application, amendment to the plaint was sought to be made by adding a paragraph containing averments that the decree in the earlier suit was obtained by deceiving the court and by practising a fraud upon the court. Even the said application came to be rejected by a detailed speaking order passed by the trial court on 16th July 2002. 7 The perusal of the present application at exhibit 231 shows that the first respondent-plaintiff raised the same contention regarding non joinder of the legal representatives of said Vishwanath in the earlier suit. Similar contention was sought to be raised by an application for amendment at Exhibit 52 and the said application was disallowed. The second part of the amendment in the present application was based on what is disclosed in the record of the R.C.S. no.89 of 1965. It is alleged that the first respondent was deceived to file a pursis for adopting written statement of another defendant in the said earlier suit. The third contention is that the certain properties which could have been subjected to the partition were not incorporated in the suit and therefore, a fraud has been practised on the court. 6 8 As far as the contention regarding non joinder of the necessary parties is concerned, it was not open for the first respondent to seek the said amendment in view of earlier order passed at on application for amendment at Exhibit 52. The other amendments are based on the record of the said suit no.89 of 1965. In a suit of the year 1977, the averments which are sought to be incorporated on the basis of the record of the suit of the year 1965 could have been certainly incorporated earlier. As pointed out earlier, two applications have been made earlier by the first respondent-plaintiff for amendment of the plaint which have been rejected by the trial court and the said orders have attained finality. The two other contentions which are sought to be raised by the present application could have been raised earlier. There is no explanation for a long delay of about 19 years in applying for amendment from the date of institution of the suit. In the circumstances, the impugned order by which amendment stands allowed is patently illegal and will have to be quashed and set aside. The learned counsel for the first submitted that the contentions sought to be raised by way of amendment have been already incorporated in the plaint. If this is so, the first respondent can always agitate those contentions if the same already form part of the plaint. After lapse of 19 years from the date of institution of 7 the suit, the said amendment could not have been permitted. 9 Hence, I pass the following order: i) Impugned Judgment and Order dated 14th December 2006 is quashed and set aside and the application made by the first respondent at Exhibit 231 stands dismissed. ii)All contentions of the parties on merits in the pending suit are expressly kept open. iii)Hearing of the suit is expedited. iv)Writ Petition is disposed of accordingly. JUDGE