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2015 DIGILAW 1544 (BOM)

Shankarrao Dattatray Patil v. Shaikh Abdul Razak

2015-07-10

F.M.REIS

body2015
JUDGMENT : Heard Mr. I. Agha, learned Counsel appearing for the petitioner in Writ Petition no. 143/2014, Mr. Anthony D'Silva, learned Advocate appearing for the petitioner in Writ Petition No.144/2015 and Mr. M. P. Mulgaonkar, learned Advocate appearing for the respondents/original plaintiffs. 2. Rule. Heard forthwith with the consent of the learned Counsel appearing for the parties. The learned Counsel appearing for the respondents/original plaintiffs waives notice. 3. Both the above Writ Petitions challenge an order dated 17.1.2014 passed by the learned Civil Judge, Senior Division, Bicholim in Special Civil Suit No. 16/2011/A whereby an application for amendment filed by the respondents came to be allowed. 4. The main crux of the submission of the learned counsel appearing for the petitioners is that by the proposed amendment, a hopelessly time barred claims are sought to be introduced by the respondents by challenging the transactions which took place in the year 1963, 1968 and 2006. 5. It is further the contention of the learned counsel appearing for the petitioner that the application itself is malafide as the in the amendment application are dishonest pleas by the respondents to make a false ground to challenge the transactions where even their predecessor in title were parties to the such documents. It is further contention of the learned counsel appearing for the petitioner that while disposing the application for temporary injunction, the Court came to the conclusion that the respondent had suppressed the documents which are sought to be challenged in the proposed amendment, which according to them, itself suggest that the respondents are not entitle for any discretion to allow them to amend the plaint. The learned counsel has thereafter taken me through the impugned order to point out that the learned Judge has erroneously failed to examine this aspect while granting leave to the respondents to amend the plaint. The learned counsel has relied upon the judgment of the Apex Court reported in 2009 (10) SCC 84 in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and others. 6. On the other hand Mr. Mulgaonkar, learned counsel appearing for the respondents has supported the impugned order. The learned counsel points out the fact that the amendment is referable to the dispute and the issues raised in the suit. Narayanaswamy and Sons and others. 6. On the other hand Mr. Mulgaonkar, learned counsel appearing for the respondents has supported the impugned order. The learned counsel points out the fact that the amendment is referable to the dispute and the issues raised in the suit. The learned counsel further submits that the documents which are sought to be challenged by the proposed amendment have nexus to the dispute raised in the suit. It is further contention of Mr. Mulgaonkar that the reliance in the finding by the learned counsel appearing for the petitioner are basically in the context of examining an equitable relief of temporary injunction and not in the context of an application for amendment of plaint under Order 6 Rule 17 of C.P.C. The learned counsel for the respondents further submits that the contentions sought to be advanced are basically in the nature of the defence to the proposed amendment which cannot be examined by this Court while granting leave to amend the plaint. The learned counsel further submits that by the impugned order the learned Judge has granted leave to amend the plaint and, as such, no jurisdictional error has been committed by the learned Judge which would call for interference by this Court in the present Writ Petition. 7. I have given my thoughtful consideration to the rival contentions of the respective parties and I have also gone through the records. 8. No doubt, the learned counsel appearing for the petitioners may be justified to contend that the averments proposed to be introduced were prima facie known to the respondents before the filing of the suit. But, however, the contention of the petitioners that the relief sought by the respondents is barred by limitation will have to be examined in the context that the respondents claimed that they had knowledge of the said documents only after the petitioners filed their written statement. In any event the suit was filed in the year 2011 and the application for amendment came to be filed in the year 2012. In such circumstances, whether the reliefs are barred by limitation or the respondents are not entitled to the alleged relief sought by way of amendments are matters to be examined by the learned Judge on its own merits after recording of evidence. In such circumstances, whether the reliefs are barred by limitation or the respondents are not entitled to the alleged relief sought by way of amendments are matters to be examined by the learned Judge on its own merits after recording of evidence. Considering that the issue of limitation is arguable on the face of the allegations in the proposed amendment, the question of non-suiting the respondents at this stage on this count would not at all be justified. The amendments sought to be incorporated are referable to the suit property and can be said to be in the context of the dispute raised in the suit. 9. No doubt, the petitioners would be entitled to file their Written statement disputing all the contentions raised in the proposed amendment and take all defences available to the petitioners in law including the plea of limitation. It is not disputed that the application for leave to amend was filed before the evidence had commenced in the suit and, as such, the learned Judge has exercised its discretion to allow the application for amendment considering the nature of dispute in the suit. The impugned Order challenges leave granted by the learned Judge to amend the pleadings. I find that there is no jurisdictional error committed by the learned Judge whilst passing the impugned Order which would call for interference by this Court under Article 227 of the Constitution of India but, however, taking note of the pleadings sought to be incorporated, I find that the Petitioner in both the Petitions are entitled for costs which are quantified at Rs.10,000/-each to be paid to the Petitioners in both the above Writ Petition as condition precedent. Such costs shall be paid by the Respondent nos. 1 to 3/Original Plaintiffs. Subject to the above payment of costs of Rs.10,000/-each to the Petitioner in each of the Writ Petition, there is no case made out for interference in the impugned Order. 10. In view of the above, I pass the following:- ORDER i. The impugned order dated 17.1.2014 passed by the learned Civil Judge, Senior Division, Bicholim in Special Civil Suit No. 16/2011/A to the extent that application for amendment filed by the respondent nos.1 to 3 is allowed subject to payment of costs of Rs.10,000/-to each set of the petitioner in such aforesaid petition as condition precedent. ii. ii. The petitioners are also entitled to file additional written statement to the amended plaint. So also other defendants in the suit are also permitted to file additional written statement on the date as fixed by the learned Trial Judge. Amendment to be carried out on or before the date before the learned Judge. iii. Parties are directed to appear before the learned Judge on 1.9.2015 at 10.00 a.m. iv. Rule stands disposed of accordingly.