1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6671 OF 2009 Union of India .. Petitioner versus Girish Shrikrishna Sule & Anr. .. Respondents Mr.A.N.Samant for the petitioner. Mr.V.A.Thorat, Sr. Counsel a/w Mr.Pankaj Sawant, Mr.Levi Rubens and Ms.Manisha Virkhare i/by Vigil Juris for the respondents. CORAM : A.S.OKA, J. DATE : 8th September 2009. ORAL JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the earlier date. The petitioner is the original plaintiff and the respondents are the original defendants. Notice for final disposal at admission stage was issued on 10th August 2009. The challenge in this writ petition under Article 227 of the Constitution of India is to an order dated 8th July 2009 passed by the learned Judge of the City Civil Court at Bombay by which application made by the petitioner at Exhibit 188 was rejected by the trial Court. 2. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the facts of 2 the case in brief. The suit is filed by the petitioner against the respondents for a negative declaration that the respondents are not the owners of the suit land and they are not entitled to interfere with the exclusive possession of the petitioner plaintiff over the suit land bearing survey No.103A (Part) at village Kirol, Taluka Salsette in Mumbai suburban district. The suit was filed in the year 2005. In the year 2007 the written statement was filed by the respondents. 3. An application for amendment of the plaint was made by the petitioner on 29th August 2007. The said application was purportedly made for correcting material typings and other errors. The said application was opposed by the respondents. An order was passed by the trial Court on the said application for amendment on 3rd September 2007. The order records that the respondents had no objection for allowing the amendment as prayed in paragraph Nos.1 to 5 of the said application. Therefore, the said amendments were allowed. The amendment prayer for by paragraph 6 of the application was not pressed. As far as prayer made in paragraph 7 of the application for amendment of prayer (c) of the plaint is concerned, the learned trial Judge noted the statement of the learned counsel appearing for the plaintiff that the area mentioned in prayer clause (c) should be 60 acres and 38 gunthas instead of 85 acres and 9 gunthas. On the basis of the said statement, the learned trial Judge accordingly allowed amendment of prayer clause (c) of the plaint. 3 4. The effect of the amendment to prayer clause (c) was that the petitioner prayed for injunction against the respondents restraining them from interfering with the possession of the land admeasuring 60 acres and 38 gunthas of survey No.103-A (part) situated at Vidyavihar, village Kirol, Taluka Kurla, Mumbai shown in the plan (Exhibit F annexed to the plaint) bounded in green colour without establishing their title to the suit land in a competent Civil Court. 5. It will be necessary to refer to the application for amendment made on which impugned order has been passed. The said application dated 12th June 2009 discloses that the application was moved after the final arguments were concluded and the learned Judge had reserved the judgment. The Application records that on 11th June 2009 a query was made by the trial Court to the counsel for the petitioner, therefore, the counsel for the petitioner took search of the record and it was revealed that the plan annexed to the plaint at Exhibit F did not correctly depict the position of the property referred to in the amended plaint. It was pointed out that by earlier order dated 3rd September 2007, prayer clause (c) was allowed to be amended for incorporating area of 60 acres and 38 gunthas in place of 85 acres and 9 gunthas and the said amendment was allowed with the consent of the parties. It was pointed out in the application that the said area of 60 acres and 38 gunthas was not specifically demarcated on Exhibit F i.e plan annexed to the plaint. Therefore, a prayer was made for permitting the petitioner to demarcate the said area of 60 acres and 30 gunthas by red 4 colour on the said plan. It was prayed that a consequential amendment be permitted to prayer clause (c) for stating therein that the area of 60 acres and 38 gunthas has been shown on the plan bounded in red. The said application for amendment was purportedly made invoking section 153 and Rule 17 of Order VI of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). The learned Judge while rejecting the said application observed that the suit was filed after coming into force of 2002 amendment to the said Code and the application will be governed by the proviso to Rule 17 of Order VI as amended in the year 2002. The learned Judge pointed out that no case was made out of exercise of due diligence by the petitioner and therefore, in view of the proviso which is mandatory in nature, the amendment cannot be permitted. 6. The learned counsel appearing for the petitioner pointed out that a statement has been made in the application for amendment that the petitioner does not desire to lead further evidence if the amendment is allowed. He submitted that the earlier amendment was allowed by consent and the present amendment was essentially sought for demarcating the area described in the amended prayer clause (c) on the plan annexed to the plaint. He pointed out that essentially the application was made under section 153 of the said Code which fact has been completely ignored by the learned trial Judge. He submitted that the amendment ought to have been allowed. 5 7. The learned counsel appearing for the respondents opposed the petition by submitting that the amendment application was moved when the learned trial Judge was in the midst of dictating the final judgment. He submitted that there is no explanation forthcoming from the petitioner as to why the said application was not made earlier. He pointed out that the earlier amendment was allowed way back on 3rd September 2007 and there is no explanation as to why the petitioner waited till 12th June 2009 for making the present application. He submitted that when the suit is already adjourned for judgment, prejudice will be caused to the respondents if the amendment is permitted as there will not be any opportunity available for the respondents to lead any evidence. He submitted that in view of the mandate of proviso to Rule 17 of Order VI of the said Code, the trial Court had no jurisdiction to permit amendment. He submitted that no fault can be found with the impugned order. 8. I have carefully considered the submissions. The suit filed by the petitioner relates to land bearing survey No.103 of village Kirol. It is claimed that the total area of the said land lying to the west of pipe line was 85 acres and 9 gunthas. As per the amendment carried out earlier, it was contended in the plaint that out of the said area of 85 acres and 9 gunthas, the Central Railway acquired aggregate area of 11 acres and 13 gunthas as notified in 1916 and 1927 which is in possession of the petitioner. It is stated that in the amended plaint that possession of another area of 48 acres and 26 gunthas which was acquired under award dated 30th July 1966 was handed over on 6 24th April 1960 by the acquiring authority. It is stated that an area of 12 acres and 12 gunthas was acquired under the award dated 22nd May 1968, the possession of which was handed over on 26th April 1960 by the Acquiring Authority. An aggregate area of 12 Acres and 38 Gunthas was acquired by Central Railway under 15 Awards. In the plaint reliance has been placed on the plan which is marked as Exhibit F. The first prayer in the plaint is for declaration that the respondents are not the owners of land bearing survey No.103-A (part) more particularly shown on the said plan Exhibit F bounded in green ink. The second prayer is for declaration that the respondents are not entitled to interfere with the peaceful and exclusive possession of the petitioner over the same portion of the land. The prayer (c) reads thus: “c) That this Hon’ble Court be pleased to grant an order of injunction restraining the defendants their servants and agents and persons claiming by through or under them from interfering with the possession of the plaintiffs, of the land admeasuring 60 acres, 38 gunthas in survey of 103-A (part) situated at Vidyavihar Village Kirol, Taluka Kurla Bombay shown on the plan bounded in Green, Exhibit `F’ hereto without by establishing their TITLE to the suit lands in a competent Civil Court of Law and not in proceedings before Revenue authorities.” 9. Thus, the prayer (c) relates to a lesser area than the area in respect of which relief is claimed in earlier two prayers. The said two prayers seek relief in respect of a larger area marked by green ink on the plan which admeasures 85 Acres and 9 Gunthas. 10. It will be also necessary to refer to earlier application for amendment 7 of the plaint made on 29th August 2007. While passing order dated 3rd September 2007 the trial Court permitted an amendment of prayer to prayer (c) for substituting area of 85 acres and 9 gunthas mentioned in prayer clause (c) by an area of 60 acres and 38 gunthas. However, while doing so the reference to area demarcated by green colour was not amended. The area marked by green, as stated earlier, covers a larger area. 11. The prayer made in the application on which impugned order has been passed reads thus: “12. In the circumstances, the plaintiffs pray that: (a) Liberty may be granted to the plaintiff to substitute the word `RED’ for the word `GREEN’ in prayer (c) of the plaint and to demarcate the area of 60 A 38 G of S.No.103/103A by red ink lines in Exhibit `F’ to the plaint therein.” 12. Essentially, the prayer is for demarcating area of 60 acres and 38 gunthas which is described in prayer clause (c) of the amended plaint on the plan at Exhibit F by red colour. Consequently an amendment is sought to prayer clause (c) for substitution of the word “green” by the word “red”. It must be noted here that under the earlier order dated 3rd September 2007 referred to above, by consent of the parties, the area of 85 acres and 9 gunthas incorporated in prayer clause (c) was permitted to be substituted by area of 60 acres and 38 gunthas. As is clear from prayer clause (c), the original area mentioned in the prayer clause was shown bounded in green colour on Exhibit F. By the present amendment, the petitioner wants to 8 demarcate area of 60 acres and 38 gunthas on the plan at Exhibit F. 13. Though the plan at Exhibit F is annexed to the plaint, it is not a part of “pleading” within the meaning of Rule 1 of the Order VI of the said Code. The said plan at Exhibit F is nothing but a document produced alongwith the plaint and for the sake of convenience, as per the practice followed in the courts at Mumbai, the same has been annexed to the plaint. It is very clear from Rule 1 of Order VII of the said Code that documents which are produced alongwith the plaint are not the part of the plaint. 14. It will be necessary to refer to section 153 of the said Code which reads thus: “153. General power to amend.- The Court may, at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.” Under Rule 17 of Order VI of the said Code, the Court is empowered to permit amendment of pleadings. Under section 153 of the said Code which gives general power to the Court to amend, a permission can be granted to amend any defect or error in any proceedings in a suit and all necessary amendments shall be made for the purpose of determining real question or issue raised by the parties. All that has been sought by the petitioner is a permission to correct the plan Exhibit F by demarcating an area of 60 acres 9 and 38 gunthas referred to in amended prayer clause (c) by red colour. On the said plan, the larger area which was referred to in prayer clause (c) prior to the amendment has been demarcated. The petitioner has stated that no further evidence will be adduced on the basis of the amendment. Though intent of the legislature of introducing proviso to Rule 17 of Order VI of the said Code cannot be altogether brushed aside, section 153 of the said Code will not be governed by the constraints of the said proviso. This was a fit case to exercise the power under section 153 for allowing correction of the plan. Once plan is allowed to be corrected, only a consequential amendment will have to be carried out to prayer clause (c) by substituting word “green” by “red”. The ground stated in the application for amendment for explaining the delay is that when a query was made by the trial Court during the course of dictation of judgment, the advocate appearing for the petitioner noticed that the plan at Exhibit F has not been corrected in confirmity with the amendment to the prayer clause (c) which was allowed by consent. Therefore, the trial Court ought to have allowed the application especially when the petitioner does not want to lead any further evidence. The prejudice which may be caused to the respondents could have been compensated by ordering payment of heavy costs. Though the petitioner does not want to lead any evidence, it is obvious that if amendment is permitted, the respondents will have to be given an opportunity to file additional written statement and to lead further evidence for dealing with the amendment. Considering the stage at which the application for amendment 10 was moved, the amount of costs is quantified at Rs.10,000/-. 15. Hence, I pass the following order: : O R D E R : a) The impugned order dated 8th July 2009 is quashed and set aside. b) The application for amendment dated 12th June 2009 at Exhibit 188 made by the petitioner is allowed subject to the petitioner paying cost quantified at Rs.10,000/- to the respondents within a period of six weeks form today. Payment of costs will be a condition precedent. Deposit of the amount of the costs with the trial Court will be treated as sufficient compliance. c) The trial Court will permit the petitioner to carry out amendment within a period of two weeks from the date on which amount of cost is paid or deposited by the petitioner. It will be open for the respondents to file additional written statement within a period of four weeks from the date on which amended copy of the plaint is served to them. It will be open for the respondents to apply to the trial Court for permission to lead further evidence. d) Writ petition is allowed in above terms. e) All contentions of the parties on merits of the suit are expressly kept open. (A.S.OKA,J)