1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.7 OF 2007 Shaikh Abdullah S/o.Bahauddin Age-67 years, Occu-Agriculture, R/o.Parli Vaijnath, Dist. Beed Through General Power of Attorney holder and wife Jainatbee W/o.Sk.Abdullah Age-64 years, Occu-Household, R/o.Parli Vaijnath, Tal.Parli Vaijnath, Dist. Beed APPELLANT VERSUS 1. Shaikh Ismail S/o.Sk.Habib Age-45 years, Occu-Agriculture, R/o.Parli Vaijnath, Tal.Parli Vaijnath, Dist. Beed 2. Shaikh Latif S/o.Sk.Habib, Age-40 years, Occu-Agriculture, R/o.Parli Vaijnath, Tal.Parli Vaijnath, Dist. Beed 3. Kausarbee D/o.Sk.Habir, Age-35 years, Occu-Household, R/o.Parli Vaijnath, Tal.Parli Vaijnath, Dist. Beed 4. Lailabee W/o.Shaikh Habib, Age-60 years, Occu-Agriculture, R/o.Parli Vaijnath, Tal.Parli Vaijnath, Dist. Beed RESPONDENTS 2 Mr.V.G.Sakolkar, learned counsel for appellant. Mr.M.A.Kulkarni, learned counsel for respondents. (CORAM : A.V.POTDAR, J.) DATE : 18/03/2010 ORAL JUDGMENT : 1. By the present AO, the appellant/original defendant, who is also appellant in RCA No.81/1993, has challenged the order passed below Exh.57, application for review filed by the original respondent in the said civil appeal, by which the review application was allowed vide order dated 13/10/2006 and the order of amendment in written statement of the appellant/defendant passed below Exh.49 was set aside. 2. Record shows that the appeal was admitted on 16/04/2007. 3. Heard learned counsel for appellant/original defendant followed by the submissions of learned counsel for respondent/ original plaintiff and respondent in RCA No.81/1993, pending on the file of Additional District Judge, Ambejogai. 4. Such of the facts which are necessary to decide the dispute between the parties can be summarized as : The original respondent plaintiff has filed the suit for partition and separate possession in respect of survey no.491, admeasuring about 32 acres 34 gunthas in which they are claiming ½ share. The 3 suit was contested by the appellant herein by filing the written statement. The suit was decreed in favour of respondents. The decree passed by the Lower Court was under challenge before the Additional District Judge, Ambejogai in RCA No.81/1993. It appears that during the pendancy of said appeal, an application was moved for amendment of written statement on 05/02/2005, i.e. about 12 years after the first appeal was admitted before the District Court. This amendment was sought on mainly two grounds, first that there was sale transaction in respect of 1 hectre 22R land by which the plaintiffs i.e. respondent no.1 and 2 have sold the said land in favour of Jugalkishore Jaju and out of the said suit property, 2 hectre 42 R land, at the eastern side was sold by the appellant/defendant on 15/05/1982 in favour of Mahatma Basweshwar Sahakari Bhadekaru Malki Gruh Nirman Sanstha. It is stated in the said application for amendment in the written statement under Order 6 Rule 17 that this transaction of alienation/transfer took place before institution of the suit. According to appellant, as there are further transfer of those lands to various persons during the pendancy of suit, as well as the appeal before the Appellate Court, it is necessary to bring those facts on record, as even though the property admeasuring 1 hectre 22R land was sold by the respondent before institution of suit like land admeasuring 2 hectre 42 R was sold by the appellant before institution of the suit, those properties were included as the subject matter of the suit property before the Trial Court. When it is specifically questioned, whether this issue was raised before the Trial Court in the written statement, to which initially the picture was not 4 made clear before this Court, but as the copy of the written statement is on record, in the said written statement, these facts find place in the last un-numbered para. Thus the fact is clear that the facts now the appellant want to bring on record by way of this amendment were within his knowledge when the written statement was filed, but the only grievance is that these pleadings were not considered by the Trial Court while decreeing the suit. 5. It appears that this amendment application under Order 6 Rule 17 of CPC was allowed by the Learned District Judge vide his order below Exh.49, dated 20/06/2006. 6. It further appears that the respondents herein have filed an application for review of this order by preferring an application under Order 47 Rule 1 of CPC, which is at Exh.57. After hearing the parties, the Court is of the view that when the amendment application at Exh.49 was allowed on 20/06/2006, true facts were not brought to his notice and while allowing the said application, there is apparent error, hence the Court has allowed the Review Application vide his order dated 13/10/2006, which is impugned in this AO. 7. During the course of submissions across the bar, it is urged on behalf of appellant that even though the order was passed, which is a mistake committed by the Court, that mistake can not be cured in review application under Order 47 Rule 1 of CPC. It is observed in the 5 matter of Madhusudan Parshuram Prabhu Vs. M/s. Devcon, Goa and another, reported in 2000(1) Mh.L.J. 448 and in the matter of Pitamber Kanhayalal Khattar and another Vs.Sadanand Harishchandra Honawar, reported in 2007(1) Mh.L.J., 817, that if there is a mistake while appreciating the facts, that decision can not be reviewed in review application under Order 47 Rule 1 of CPC. On clear reading of these citations, this is a mis-interpretation of the statute as observed in both these judgments cited by the appellants. On the contrary, it is observed in both these judgments that if there is an apparent error while appreciating the facts stated during the course of submissions, as well as the fact that the legal position is not clearly submitted, then review is permissible. It is observed in para no.16 in the judgment of Madhusudan’s case as well as in para no.3 and 4 in the judgment of Pitambar’s case, then it is necessary to consider whether there is any apparent error while passing the order, for which review application was moved which came to be allowed and the order passed therein is impugned in the present AO. 8. It is not under dispute that the suit is for partition. It is also not under dispute that there is alienation/transfer of certain part of property at the hands of appellant as well as respondents. This fact is disclosed by the appellant, who is defendant before the Trial Court in the last un-numbered para of his written statement before the Trial Court. Considering this aspect, one fact is clear that even though it is alleged and contended on behalf of the appellant that these are the transactions during the pendancy of litigation before 6 the Trial Court as well as before the Appellate Court, on the contrary, this submission is not tenable in Law as in the amendment application itself, there is reference that this alienation is before institution of the suit for partition by respondents. Then the fact is clear that these events are not subsequent events after filing of the suit before the Trial Court. At the same time, one has to consider the scope of section 52 of The Transfer of Property Act. On clear perusal of section 52 of The Transfer of Property Act, which is applicable in the strict sense in all the parts of the State that all the transactions took place during the pendancy of litigation, subsequent occupiers or the persons in whose favour, the property is transferred, are bind by the decision of the Court, if the subject matter of the transfer is subjudiced before the competent Civil Court. In other words, the transferee will get the title which is decided as per the decision in the pending civil matter before the competent court of law. This fact is also observed by the learned First Appellate Court in his judgment in review application that the transferee during the pendancy of civil litigation will not get better right than the person from whom he is claiming his rights. Considering the overall effect that the amendment application which was at Exh.49, allowed by the First Appellate Court was at that juncture only to be rejected, but was allowed for whatever reasons, but it appears that when the apparent error of law was brought to the notice as during the trial before the Trial Court, certain admissions were given by the parties, which this appellant want to wipe out by way of proposed amendment, which is not permissible in Law. In the premise, it is rightly observed by the 7 First Appellate Court that the order on earlier amendment application as allowed require to be set aside by passing the order below Exh.57, i.e. the review application. 9. In this regard, latest view taken by the Apex Court in the matter of Revajeetu Builders and Developers Vs Narayanaswamy and Sons and others , reported in (2009) 10 SCC page 84, require to be considered. It is observed by the Apex Court in para no.59 and 64 that Courts have very wide discretion in the matter of amendment of pleadings, but court’s power must be exercised judiciously and with great care. While deciding the applications for amendment, the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit (underline is mine) malafide, worthless and/or dishonest amendments. It is further observed that the first condition, which must be satisfied before the amendment can be allowed by the Court is whether such amendment is necessary for the determination of real question in controversy. If the condition is not satisfied, the amendment can not be allowed. This is the basic test which should govern discretion in grant or refusal of the amendment. The facts emerges which the appellant want to set up before the First Appellate Court as well as before this Court that the amendment is necessary as these are the events during the pendancy of the litigation before the courts below, which itself falsifies from the statement of fact disclosed in the amendment application that these transactions of transfer were already taken place before institution of the suit, and within the knowledge of 8 appellant defendant. Considering this aspect, this amendment do not satisfy the condition which require to be considered to allow the amendment application. On the contrary, it suggests that when the original suit was filed in the year 1982, which came to be decided in the year 1993, in which appeal was preferred in the year 1993 and for the transfers of the year 1976, amendment application was moved in the year 2005, it itself suggests that the amendment application was malafied and in exercise of the discretion by the First Appellate Court while deciding the review application below Exh.57, for the well reasoned order, rejected the amendment earlier allowed and allowed the review application. 10. Considering this legal as well as the factual aspect of the impugned order under challenge in this AO, require no interference at the hands of this Court. In the premise, AO sans any merit, stands rejected. 11. Rule discharged. 12. Registry to send back the R & P immediately to the First Appellate Court by the way, no inconvenience will be caused to the court for disposal of pending regular civil appeal. Parties are hereby directed to appear before the First Appellate Court, i.e. District Judge, Ambejogai on 25/03/2010. (A.V.POTDAR, J.) khs/MAR 2010/ao7-07