1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7178 OF 2008 Vishnu s/o Pandurang Pawar ...Petitioner Versus Smt. Dropadabai w/o Subhash Pawar and others ...Respondents ..... Mr. M.S. Indani, advocate for the petitioner Mr. S.V. Natu, advocate for respondent Nos.1 to 5. ..... CORAM: S. S. SHINDE, J. DATED: 17TH AUGUST, 2009 PER COURT:- 1 This petition is filed challenging the order passed below Exh. 55 in R.C.S. No. 273 of 2007 by the IInd Joint C.J.J.D. Georai. The petitioner filed R.C.S. No. 273 of 2007 against the present respondents. The said suit was filed for claiming partition and separate possession of the joint Hindu family property. In the said suit, the present petitioner filed application below Exh.55 by which the original plaintiff petitioner prayed for amendment 2 in the plaint as indicated in para 5 of the said application. Learned Judge after hearing the parties and appreciating the contents of the parties rejected the said application below Exh.55. Hence, this petition. 2 The learned counsel appearing for the petitioner submitted that at any stage of the suit, the application for amendment of the plaint can be entertained and there is no bar to entertain the application. Learned counsel further submitted that by way of said amendment there will be no change in the nature of the suit and no prejudice would be caused to the respondents herein. Learned counsel further submitted that the said application was filed by the petitioner after evidence was recorded in R.C.S. No. 75 of 2004 and in that suit it has come on record that the husband of respondent No.1 herein prior to marriage with respondent No.1 got married with one Shakuntala d/o Baburao Chavan in the year 1970 and their marital relations were intact till 1977. According to the learned counsel, the application was immediately filed after this fact came on record in R.C.S. No. 75 of 2004. According to the learned counsel, the amendment, which the petitioner wish to bring on record in the plaint, would not change the nature of the suit. Learned counsel further submitted that the fact 3 which the petitioner wish to bring on record is not in dispute because already it has come on record in some other suit i.e. R.C.S. No. 75 of 2004 that the husband of the respondent No.1 herein prior to their marriage, got married to one Shakuntala in the year 1970 and marital relations were intact till 1977. According to the learned counsel the amendment was not inserted in the original plaint because it was an apprehension that said Shakuntala would depose in R.C.S. No. 75 of 2004 that she is not legally wedded wife of the deceased Subhash Pawar and therefore, only after the said fact was come on record in R.C.S. No. 75 of 2004 this application is filed by the petitioner. Learned counsel further submitted that this application is perfectly tenable. This application is filed under Order VI Rule 17 and there are various pronouncements of this Court as well as the Hon’ble Supreme Court, which would show that the provisions should be liberally construed and the amendment to the plaint shall not be denied on technical ground. Learned counsel placed reliance on the following reported judgments;- i) 2004 Mh.L.J. 203 ii) 2006 (3) Supreme 507 iii) AIR 1969 SC 1267 iv) 2007 (6) Mh. L. J. 609 On the basis of the judgment at Sr. No.1 mentioned here in 4 above, learned counsel submitted that power of the court to allow amendment is wide and can be exercised, at any stage of the proceeding and while deciding the prayer for amendment the court should not adopt hyper technical approach. While placing reliance on the reported judgment of the Supreme court in the case of Rajesh Kumar Aggarwal and Ors. Vs. K.K. Modi and Ors. reported in 2006 (3) Supreme 507, learned counsel submitted that the provisions of Order VI Rule 17 contemplates that the court may at any stage of the proceeding allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Relying on another judgment of the Apex Court in the case of Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale and others, reported in 2007 (6) Mh. L. J. 609, learned counsel submitted that to decide the real controversy in issue it is necessary to allow the amendment to the plaint. Learned counsel has invited my attention to para 14 of the said judgment and submitted that though the application for amendment is filed at belated stage, in the interest of justice, such amendment should be allowed. Learned counsel further invited my attention to the reported judgment of the Supreme Court in the case of Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon, reported in AIR 1969 SC 1267 and more particularly Head note A of para 5 and 5 submitted that Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The sum and substance of the argument of the learned counsel is that the application filed by the petitioner for amendment in the plaint is not at belated stage. Even assuming that the application is filed after framing issues and at the stage of recording evidence, even then the court is not powerless to entertain the application for amendment of the plaint. Thirdly, no prejudice would be caused to the respondent because of the amendment application is allowed, since the fact which the petitioner wish to incorporate in the plaint is not disputed by the respondent. According to learned counsel, in order to make complete justice to the parties, application for amendment should have been allowed by the court below. Therefore, the learned counsel would submit that the writ petition may be allowed and the petitioner may be permitted to amend the plaint as prayed in the application for amendment before the lower court. 3 Per contra, learned counsel appearing for the respondent invited my attention to the affidavit in reply filed by the respondent before the lower court. Learned counsel submitted that on perusal of the application filed by the petitioner before the court below it is clear that the petitioner has not disclosed anything to contend that the petitioner 6 was prevented by sufficient cause in not incorporating the said amendment at the time filing of suit. Learned counsel submitted that the application is filed after framing issues and when the matter was posted for recording evidence. According to learned counsel issues were framed in the matter in the month of April, 2008 and the application for amendment is filed in the month of September, 2008. According to the learned counsel the matter was posted for recording evidence and therefore, when the trial was already commenced the trial court has rightly rejected the application. Learned counsel further submitted that allowing application filed by the petitioner for amendment would change the nature of the suit and will cause prejudice to the respondent No.1. Learned counsel submitted that in other suit pending before the same court, the petitioner has already admitted relationship between respondent No.1 and deceased Subhash Pawar and therefore, in case this amendment is allowed, this would cause great prejudice to the respondent and there would be question mark about relationship of respondent No.1 and deceased Subhash. Therefore, counsel for respondent No.1 submitted that the trial court has taken view which was possible view on the basis of the rival contentions and therefore, this Court may not interfere in writ jurisdiction. Learned counsel invited my attention to the reasons recorded by the court below and submitted that the court has observed that this application is filed by the petitioner only to prolong the proceeding of the suit. 7 4 I have heard learned counsel for the petitioner and the learned counsel appearing for the respondent at great length. Perused the order passed by the trial court, the contents of the petition, annexures thereto and on careful perusal of the same, I find that the trial court has dealt with aspects of the matter and passed well reasoned order. The trial court in para 4 has recorded that the plaintiff-petitioner herein very well aware that his brother Subhash Pawar was previously married to Shakuntala and their divorce took place in the year 1977. But the plaintiff has not mentioned this fact in the pleading of the suit. The learned Judge further observed that the present suit is for partition and separate possession of the suit land and house property and Shakuntala has no concerned with the suit property because she is divorced wife of Subhash Pawar. Shakuntala also admitted in her evidence in R.C.S. No. 75 of 2004 that she performed second marriage, she has no concern at all to the plaintiff and defendants. It is further observed that plaintiff has filed an application for amendment at Exh.27 on 22.4.2008 and the said application is allowed and the plaintiff has carried out the said amendment on 22.7.2008. If the plaintiff was very eager to include the name of Shakuntala. Then he could have made prayer in the earlier application at Exh.27. The court has recorded that there is intention of the plaintiff to prolong the matter. The court has also observed in para 8 that if the 8 amendment is carried out then the nature of the suit would be changed and adverse inference will have to be drawn against the defendant. The learned Judge has considered the application on all aspects and came to the conclusion that the application filed just to prolong the proceeding. The learned Judge has also referred in para 7 to the directions in writ petition No. 3334 of 2006 to dispose of pending suit within 18 months. 5 On independent appreciation of the contention of the learned counsel for the petitioner, I am unable to appreciate that the amendment, which the petitioner wish to including in the plaint, is necessary to resolve the main issue in controversy. The reliance placed by the learned counsel on the judgments of the Apex Court, is wholly misplaced in the facts of this case. The trial court has rightly observed in para 3 that Shakuntala has no concern at all with suit property because she was divorced wife of deceased Subhash Pawar and Shakuntala also admitted in her evidence in R.C.S. No. 75 of 2004 that she performed second marriage and therefore, she had no concern at all with the plaintiff and defendants. 6 Coming to the second contention of the learned counsel for the petitioner that the application filed by the petitioner is at a proper time is required to be rejected, as the application is filed at belated stage after issues were framed and date was fixed for recording the 9 evidence. The issues are framed in the matter on 19.4.2008 and date for recording evidence as informed by the learned counsel for the respondent was on 22.4.2008 and the application for amendment is filed by the petitioner on 22.9.2008. Therefore, the application was at belated stage. Though learned counsel submitted that the application for amendment can be entertained at any stage. To appreciate this contention, I have perused the contents of the application filed before the trial court and on perusal of the application, it does not appear that the petitioner has disclosed any reason that he was prevented by sufficient cause in not incorporating the facts in the original plaint which now he wants to incorporate in the plaint by way of amendment. In fact the deceased Subhash Pawar was real brother of the petitioner and the petitioner was very well aware about his marriage with Shakuntala in 1970 and dissolution of marriage in the year 1977 and therefore, by any stretch of imagination it cannot be said that the fact which the petitioner plaintiff wish to bring on record by way of amendment, was not within the knowledge of the petitioner, while filing the suit. 7 The judgments cited by the learned counsel are not helpful in the facts and circumstances of this case, I find considerable substance in the contention of the learned counsel for the respondent that the amendment may change the nature of the suit and also it will prejudice the interest of respondent No.1 since the petitioner has 10 already admitted the relationship of deceased Subhash Pawar and respondent No.1 Shakuntala. If the amendment is allowed to be brought on record then that may affect marital status of respondent No.1 with deceased Subhash. Apart from this, the trial court has in many words has observed that the application is filed by the petitioner with an intention to prolong the proceeding of the other suit as well as the the present suit. 8 Viewed from any angle, the writ petition is devoid of any merits, the trial court has taken possible view and there is no reason to interfere in the writ jurisdiction in the facts of this case. Hence, writ petition is dismissed. 9. Interim relief, if any, stands vacated. *****