1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.30 OF 2010 Smt.Janabai Barku Waghchoure & Ors. ...Petitioners vs. Punjaram Kachru Waghchaure & Ors. ...Respondents Mr.R.M.Harial a/w Mr.P.N.Joshi for the petitioners Mr.S.V.Kasar for the respondents CORAM :A.S.OKA,J. DATE : APRIL 28, 2010 P.C.: 1 Notice for final disposal was issued on 11 th January 2010. The challenge in this writ petition under Article 227 of Constitution of India is to the order dated 18 th November 2007 by which an application for amendment of the written statement made by the petitioner was rejected by the trial Court. The first respondent is the original plaintiff. 2 The first respondent filed a suit against the petitioners who are 1 st to 3 rd defendants. The 2 nd respondent herein is the 4 th defendant. The suit relates to an agricultural land described in paragraph 1 of the plaint. The first prayer in the suit is for perpetual injunction. The second prayer is for declaration that the sale deed dated 15 th February 1988 executed by deceased Barku 2 (predecessor of the petitioners) in favour of the first respondent in respect of the suit property is binding on the petitioners and the 2 nd respondent and the said parties are under an obligation to ensure that the name of the first respondent is entered in the revenue record. There is another prayer where the challenge is to the sale deed executed on 4 th February 2006 by the petitioners in favour of the 2 nd respondent. The declaration claimed is that the said sale deed is not binding on the first respondent. The said suit was filed in the year 1998 and written statement was filed by the petitioners disputing the claim of the first respondent. The present application for amendment of the written statement was made by the petitioners pointing out that on 17 th December 2007, the first respondent was permitted to carry out amendment by incorporating the additional paragraphs 4-B, 7-A, 10-A as well as 11-AA-1. By the proposed amendment, a prayer was made for incorporating paragraph 10-A in the written statement. The said paragraph was sought to be incorporated for denying the allegations made by the first respondent on the basis of the sale deed dated 4 th February 2006. Paragraph 10-B was sought to be incorporated in the written statement for raising a contention that the alleged sale deed dated 25 th February 1988 executed by the said Barku was null and void. It was contended that unless a re-grant of suit land which was an Inam land was obtained by the said Barku, he had no right to execute the sale deed. It was contended that the price of the property described in sale deed does not reflect the correct market value. By paragraph 10-C, it was 3 sought to be contended that the ex-parte injunction was obtained by the first respondent by suppression of facts. Paragraph 10-D is sought to be added for incorporating the factual assertions that on 4 th February 2006, there was a re-grant of suit property in favour of the petitioners under the orders of Tahsildar and thereafter for legal necessity, the sale deed was executed on 4 th February 2006 in favour of the 2 nd respondent. Another application was made seeking condonation of delay in making the application for amendment. Application for amendment has been rejected by the learned trial Judge mainly on the ground that the proviso to rule 17 of Order VI of the Code of Civil Procedure,1908 is applicable and therefore , unless a case of due diligence is made out, the amendment cannot be permitted. It was pointed out that the application for amendment was made after commencement of recording of evidence. 3 The submission of the learned counsel for the petitioners is that the amendment is sought essentially for dealing with the amended plaint. The plaint was permitted to be amended under order dated 17 th December 2007. He submitted that as the suit was of the year 1996, amended rule 17 of Order VI will have no application. He submitted that not only that the amendment is based on the amended plaint but it is also based on the events which have taken place in the year 2006 namely re-grant of the suit property and execution of the sale deed in favour of the 2 nd respondent. He submitted that as proviso to rule 17 of Order VI will not apply, entire approach 4 of the trial Court is erroneous and the Court ought to have adopted a liberal approach by permitting the amendment. 4 The learned counsel for the first respondent relied upon a decision of this Court in case of Anil s/o Vishwanath Jadhav Vs. Pankaj s/o Indrajeet Bassi [2010 (2) Mh.L.J. 220). He submitted that relying upon a decision of Apex Court, this Court has held that compliance with proviso to Rule 17 of Order VI of the said Code is a condition precedent for allowing amendment of the pleadings . He submitted that this Court has held that the proviso will apply even to the suit filed prior to coming into force of the Amendment Act in as much as the said decision this Court was dealing with the suit filed on 31 st October 2001. He submitted that no case was made out as there was a gross delay in applying for amendment. 5 I have carefully considered the submissions. The trial Court has mainly relied upon the proviso added to Rule 17 of Order VI by the Code of Civil Procedure (amendment) Act,2002 which came into force with effect from 1 st July 2002. Reliance was placed by the learned counsel for the first respondent on the decision of this Court in case of Anil Jadhav (supra) where this Court was dealing with the application for amendment of pleadings arising in the suit filed prior to 1 st July 2002. In paragraph 6 of the said decision this Court has observed thus : 5 6...There is considerable force in the submission of the counsel for the respondent that the application for proposed amendment is filed after six years from the date of filing of the main written statement. It is an admitted position that the issues are framed on 12-6-2003. The Hon ble Supreme Court in the case of Vidyabai and ors. Vs. Padmalatha (supra) has held that the trial commences on the date on which the issues are framed, which is the date of first hearing. The proviso of Civil Procedure Code can envisage taking of various steps of different steps of the proceeding. Filing of affidavit in lieu of examination in chief of the witnesses, would amount to commencement of proceeding. The Apex Court in para 7 has observed that the proviso to Order VI, Rule 17 of Civil Procedure Code is coached in mandatory form. The Court s jurisdiction to allow such an application for amendment is taken away unless condition precedent thereof for are satisfied i.e it must come to conclusion that in spite of due diligence the parties could not have raised matter before commencement of trial. In the instant case, it is an admitted position that the issues are framed long back in the year 2003. The examination in chief of the plaintiff is over. Even cross examination is also over and at belated stage, the application is filed on behalf of the 6 petitioner for amendment in the written statement. The trial Court has observed in para 2 of the impugned order that the suit is part heard. Most of the witnesses of the plaintiff are examined by him and application for amendment of written statement is filed by the defendant at the stage, when witnesses of the plaintiff are examined. It is further observed by the trial Court that the facts, which defendant are proposed to amend were within the knowledge of the defendant, when written statement was filed at Exh.14. It must be stated here that a binding precedent in the form of a decision of the Apex Court in case of State Bank of Hyderabad Vs. Town Municipal Council ([2007] 1 SCC 765) was not brought to the notice of this Court when the case of Anil Jadhav (supra) was decided. In the said decision, a specific question arose for consideration of the Apex Court was as to whether proviso to added to rule 17 of Order VI of the said Code with effect from 1 st July 2002 will apply to the suits filed prior to that date. The Apex Court considered section 16(2) of the Amending Act of 2002 and in paragraphs 7 and 8 of the Judgment, the Apex Court held thus : “7. Section 16(2) of the amending Act of 2002 reads as under: “16. (2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897,— 7 (a) * * * (b) the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;” 8. In view of the said provision there cannot be any doubt whatsoever that the suit having been filed in the year 1998, proviso to Order 6 Rule 17 of the Code shall not apply.” (emphasis Added) 6 Therefore, the first respondent cannot rely upon the decision of this Court in case of Anil Jadhav (supra) which is rendered in ignorance of a binding precedent. Therefore, the decision of this Court in case of Anil Jadhav (supra) cannot be read as a binding precedent. 7 It is well settled law that the court has to adopt a liberal approach while permitting the amendment of the pleadings and especially the amendment of the written statement. The amendment is sought essentially for dealing with the amended portion of the plaint which was permitted to be added under order dated 17 th December 2007. The details of the proposed amendment have been already set out in the earlier part of this order. There is no attempt of withdrawal of any admissions. The object of the proposed amendment seems to be to deal with the amended portion of the plaint and to bring on record the fact that in the year 2006 the suit land was allegedly re-granted to the petitioners after payment of Nazrana and thereafter, it was sold to the 2 nd respondent for legal necessity. Thus, the impugned order is illegal and deserves to be quashed and set aside. 8 8 Hence, I pass the following order : i) Impugned order dated 18 th November 2009 is quashed and set aside. The applications as Exhibits-146 and 148 are allowed and the petitioners are permitted to carry out amendment to the written statement. ii)Amendment shall be carried out within a period of two weeks from the date on which writ of this order is received by the trial Court. iii)After amendment is carried out, the learned trial Judge will consider the question of framing additional issues. iv)It will be open for the first respondent to file further affidavit in lieu of examination- in-chief of their witnesses and to lead further evidence, if any, in the light of the amendment to the written statement. v) Petition is allowed in above terms. vi)The petitioners will pay costs of Rs.5000/- to the first respondent. The amount of costs to be deposited with the trial Court within a period of ten weeks from today. JUDGE 9