1 C.A. 4661/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO. 4661/2011 IN SECOND APPEAL NO. 933/2008 Rameshwar s/o Gajanan Tambat, Age : 42 years, Occu. Service, R/o Mangrul, Tq. Chikhali, Dist. Buldhana, At present R/o Thane. ....Applicant. (Deft. No.1.) Versus 1 Sarvottam s/o Bappaji Kolapkar, Age : 75 years, Ocu. Agri., R/o Khamgaon, Tq. Georai, Dist. Beed. 2 Subhash s/o Bappaji Kolapkar, Age : 58 years, Occu. Service, R/o Khamgaon, Tq. Georai, Dist. Beed. At present R/o N-1, CIDCO, Aurangabad. 3 Sou. Vasudha w/o Subhash Kolapkar, Age : 51 years, Occu. Housewife, R/o Khamgaon, Tq. Georai, Dist. Beed. At Present R/o N-1, CIDCO, Aurangabad. ...Respondents. (Original pltff.Deft.2,Deft.3) Mr. Milind M. Patil (Beedkar), Advocate for the applicant. Mr. C.R. Deshpande, Advocate for respondent No.1. Mr. S.S. Patunkar, Advocate for respondents Nos. 2 and 3. CORAM : A.V. NIRGUDE, J. DATED : 21st July, 2011. PER COURT: 1. In this second appeal which is still not admitted since year 2008, rather belatedly, the present application is moved seeking permission of the Court to amend the written statement. Obviously, 2 C.A. 4661/2011 such application is required to be decided in light of the provisions of Order VI Rule 17 C.P.C.. Rule 17 of Order VI reads as under. Rule 17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 2. Since the suit was filed in 1997, the provisions of the proviso would not apply to the present case. 3. The question therefore, arises as to whether amendment is necessary for the purpose of determining real question of controversy between the parties? 4. For answering this question, one must know the cause of action for the suit and the defence that is raised earlier. Respondent No.1 Sarvottam is the original plaintiff. He said that the suit land became his property because the same was allotted to his share in family partition which took place way back in 1950. He also placed reliance on a Court decree, which gave effect to the partition. I think, there is no dispute between the parties on this event. He said, till 1971 he enjoyed ownership of the suit land. He said, a dispute around that time arose between his father Bappaji and his mother Bhagirathi. He therefore, created life-time interest in respect of the suit land in favour of his mother Bhagirathibai. Soon thereafter, the revenue record started showing the name of Bhagirathibai as owner of the property. 3 C.A. 4661/2011 Bhagirathibai thus became owner of the suit property at least ostensibly. Bhagirathibai on 21/11/1971 signed a memorandum admitting that she held only life interest in the suit property though she is ostensibly shown owner of the same. She further mentioned that on her death, property would revert back to plaintiff Sarvottam. On 19/06/1992, Bhagirathi executed a sale deed in favour of defendant No.1. In March 1993 Bhagirathibai died. In 1997, respondent No. 1/plaintiff filed this suit for declaration of ownership and recovery of possession, against mainly the appellant. The appellant took upon a defence that Bhagirathibai became owner of the suit property because she had informed him that she was given this land by her father-in-law Ramkrishna, grand father of Sarvottam the plaintiff. In light of this controversy, the trial took place and the Courts below consistently held that the appellant Rameshwar could not prove his case of title. 5. This second appeal as said above, was filed in year 2008 and as said above, rather belatedly the present application is moved this time. The appellant/defendant No.1 is seeking permission of the court to introduce completely new defence. 6. He now says that he was not aware of facts which he found rather belatedly after he took search of the revenue record. 7. He says he found new information. He says The suit land and other lands belonged to the respondent No.1 and his father Bappaji, were in 1992 subjected to consolidation scheme introduced by the Bombay Prevention of Fragmentation and Consolidation of holdings Act, 1947. He said that as per the record maintained under the scheme, he learnt that the suit land was given to Sarvottam’s father Bappaji, in exchange to certain other land. He said, the suit land thus 4 C.A. 4661/2011 became Bappaji’s property. He said, thereafter Bappaji handed over this land to his wife Bhagirathibai in family partition and he further learnt that pursuant to such transfer, mutation entry was also taken. He now suggests that Bhagirathibai his vendor became owner of the suit property, in view of the transfer of the same from its real owner Bappaji. He is seeking permission of the Court to introduce this defence to the written statement. 8. Respondent No.1 strongly opposed this move saying that the application is malafide and purposely filed to delay the disposal of the suit. He said a completely new defence is raised which is inconsistent with the earlier one. It is also argued on behalf of the respondent No.1 that due to the defence raised earlier, certain right is accrued in favour of the respondent/plaintiff etc.. 9. The first question that is required to be decided is, whether this application could be said to be malafide. The answer is in negative. Compared to the earlier defence, the proposed defence looks more formidable and more elaborate. Had the defendant No. 1 knew all these facts, which are now mentioned in the amendment, he would not have avoided the same while drafting his written statement. His case that he learnt these facts rather belatedly after filing second appeal is believable. 10. The second question for my consideration is, whether the earlier defence has created any right in favour of the respondent No. 1/plaintiff. The answer is in negative again. All through out the gist of the defence of the applicant/defendant No.1 is that his vendor Bhagirathibai had valid title and he after due inquiry, purchased the property from her and the transfer was bonafide. Earlier, he believed 5 C.A. 4661/2011 and stated that Bhagirathi got her title from her father in law. This time, the applicant/defendant No.1 is trying to state that his vendor had good title but the same came from her husband Bappaji. He also explained as to how her husband Bappaji could get valid title to the suit land. He placed reliance on various documents, in support of his case. The gist of his defence again lies in his assertion that his vendor Bhagirathibai had valid title. This gist has not been changed even if a new theory is proposed. So, due to the earlier defence, no specific right arose in favour of the respondent/plaintiff which is likely to be destroyed if the new defence is allowed. 11. The learned advocate appearing for respondent No.1 / plaintiff placed reliance on few judgments in support of his submissions. The first judgment is in the case of M/s Modi Spinning & Weaving Mills Co. Ltd. And another Vs. M/s Ladha Ram & Co. reported in (1976) 4 Supreme Court Cases 320. The Supreme Court refused to permit amendment in the written statement in that case mainly because entirely new case was sought to be introduced by the proposed amendment and to deprive the plaintiff of valuable right which was accrued to him due to previous defence. The Supreme Court observed that due to the admissions made by the defendant in his written statement, certain right accrued to the plaintiff and accrual of such right can not be eliminated due to proposed amendment in written statement which was seeking to withdraw those admissions. In our case, as said above, the gist of the defence remains unaltered though new theory is propounded for asserting as to how vendor of the appellant/defendant No.1 got title to the suit land. 12. The second judgment is again of Supreme Court in the case of 6 C.A. 4661/2011 Canara Bank and others Vs. Standard Chartered Bank reported in AIR 2002 Supreme Court 132. In this case, amendment to the written statement was refused because the defendant tried to take a entirely new defence. The suit was filed for recovery of sale consideration. The defence was a plea of squaring off. But thereafter, a new plea was raised that transfer itself was against public policy and was not binding. Such plea was refused because the defendant earlier had admitted the transfer and the validity of the same. 13. The third judgment is of this Court in case of Mrs. Vandana S.P. Sangaonkar Vs. Bank of India and another reported in AIR 1997 BOMBAY 257. This was a suit filed by a Bank against its debtor for recovery of money. In written statement, the debtor admitted that she had received the loan but in the proposed amendment she sought to withdraw such acknowledgment of loan. Thus the amendment was refused. The Court observed as under. “The petitioner, by amendment in written statement, wants to set up an entirely new case in order to offset the stand taken in the previous written statement wherein there was admission of execution of documents relating to loan as well as acknowledgment of loan. Moreover, the liability in respect of the loan in question had been listed in the insolvency petition filed by the petitioner. Rejection of amendment application in such a case is proper.” 14. The next judgment is again of this Court in the case of Balu Appaji Sangaonkar Vs. Rangrao Dattoba Palkar reported in 2001(2) Mah.L.J. 709. In this case, the defendant specifically pleaded in written statement that he was tenant of the plaintiff. But subsequently, he tried to introduce a new theory saying that he was in 7 C.A. 4661/2011 possession of the suit property as sub-tenant since prior to 1st February, 1973. This plea was taken to seek protection of certain provisions of the Bombay Rent Act. It was observed that the plea of the defendant was inconsistent with and disruptive of original plea and so was not allowed. 15. The last judgment on which reliance was placed is the case of Haji Mohmmed Ishaq Wd. S.K. Mohammed and others Vs. Mohamed Iqbal and Mohamed Ali & Co. reported in AIR 1978 Supreme Court 798. Even in this case, the defendant was trying to introduce a completely new defence which was disruptive of their earlier defence. 16. All these judgments cited above, would not convince me that in this case, the new plea is disruptive of the earlier plea or that it is causing prejudice to the right accrued to the respondent No.1/ plaintiff because of the earlier plea in the written statement. Even though a new case is pleaded, still the essence of the defence has not been changed. 17. There is one more objection raised against the application. The learned advocate appearing for the respondent No.1 asserted that while the matter was before trial Court, present appellant who was defendant No.1 and other two defendants had filed a joint written statement whereas the second appeal is filed only by the defendant No.1. He said that in such set of facts, defendant No.1 should not be allowed to amend the written statement which was jointly filed with other two defendants. This objection is rather innocuous and can be ignored easily. The other two defendants namely defendants no.2 and 3 are respondents here and have 8 C.A. 4661/2011 supported the application. So, even if they are not appellants here, if the amendment is allowed, they would also join the appellant/defendant No.1 in amending written statement. In other words, by this order, the original defendants no.1 to 3 are allowed to amend the written statement. 18. The learned advocate appearing for the respondent No.1 also asserted that this plea to seek amendment to the written statement, can not be allowed nor it can be considered before the appellant succeeding in getting appeal admitted. He said, unless the Court finds that there is substantial question of law arose in this appeal, nothing can be done in the appeal. In order to support this submission, he placed reliance on judgment of Supreme Court in the case of Kshitish Chandra Purkait Vs. Santosh Kumar Purkait and others reported in AIR 1997 Supreme Court 2517. After having gone through the text of the judgment, it was found that the ratio of this judgment would not apply to the proposition mentioned above. In that judgment, the Supreme Court found that in the second appeal stage, the High Court considered the evidence and allowed the appeal on a completely new plea which was not considered by the Courts below as if it was deciding a first appeal. The Supreme Court held that such course of action at second appeal stage was not permissible in view of section 100 of C.P.C.. 19. Here although the amendment to the written statement is permitted, the Court is yet to examine as to whether any substantial question of law arises in this appeal. 20. The only valid objection that can be raised against the application is its belatedness. The application is enormously belated. 9 C.A. 4661/2011 The suit is pending since 1997 and in 2011 this plea for amending written statement is raised at second appeal stage. But having regard to the facts of the case and the purpose of Rule 17 of Order VI C.P.C., I am inclined to allow the application putting the appellant to a stiff term. The appellant/defendant No.1 should be directed to pay cost of Rs.10,000/- to the original plaintiff/respondent No.1. ORDER The application is allowed. The applicant / appellant is allowed to amend the written statement subject to payment of cost of Rs.10000 to the Respondent No.1. (Original record is already with this Court.) At the request of learned advocate appearing for respondent No.1, the effect of this order is kept in abeyance for six weeks. In view of this order, Civil Application No. 4913/2010 seeking to adduce additional evidence is rejected. [A.V. NIRGUDE,J.] ts k/2011/July21/ca4461.11/ok