Allowed

Shri. Sonappa Genu Khade, through P.a.Holder Shri. Hiralal Sonappa Khade v. Shri. Shivaji Nivrutti Jagtap and Anr.

Bombay HC10 Aug 2021WP/12832/2017

Case brief

AI extract

What is this about?

The High Court allowed the petitioner to amend a plaint for specific performance to implead co-owner sisters, quashing the trial court's rejection that alleged a change in the suit's nature.

What did the court decide?

Impugned order rejecting amendment application was quashed; application allowed subject to payment of costs.

What the court decided

Shri. Sonappa Genu Khade, through P.a.Holder Shri… — Specific Performance | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.12832 OF 2017

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Shri Sonappa G. Khade .. Petitioner. v/s. Shri Shivaji N. Jagtap & Another .. Respondents.

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Mr. Sukumar R. Ghanavat i/b.Mr. V. S. Talkute, for the Petitioner. Mr. Rajesh N. Kachare, for the Respondents.

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CORAM: MADHAV J. JAMDAR,J. DATED : 10^th AUGUST, 2021.

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P.C:-

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The Petitioner is original Plaintiff and challenges legality and validity of order dated 22^nd August, 2017 passed by learned 3^rd Joint Civil Judge, Junior Division, Daund, below Exh. 21 in Regular Civil Suit No. 6 of 2013. The said application at Exh. 21 was filed for amendment of the plaint and by the impugned order, the said Exh. 21 application was rejected.

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2 Mr. Ghanavat, learned Counsel appearing for the Petitioner submitted that the issues are not framed and evidence has not yet started. He submitted that, thus trial has not begun and as per the settled position all, pre-trial amendments are to be liberally granted. He submitted that by the proposed amendments, nature of suit is not going to be changed.

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3 Mr. Kachare, learned Counsel appearing for the Respondents submitted that proposed amendments is for removing the lacuna in the

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suit. In the written statement, detailed contentions were raised regarding non-joinder of necessary parties i.e. sisters. Thereafter, the amendment application is filed malafidely. He submitted that cause of action for filing the suit is completely changed by the proposed amendments. He submitted that the proposed amendments are not bonafide and, therefore, no interference in the impugned order is required. He relied on the judgment of Supreme Court in the case of Revajeetu Builders and Developers v/s. Narayanswamy and Sons and Others, reported in 2009 (10) SCC 84.

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4 Perusal of the annexures annexed to the Writ Petition shows that, Petitioner filed Regular Civil Suit No. 6 of 2013 against Respondents Nos. 1 & 2, seeking specific performance of agreement of sale dated 11^th March, 1996. It is contended in the plaint that the suit land was allotted to Respondent No.1 by Government of Maharashtra. Thereafter, on 11^th March, 1996, by registered agreement of sale, suit land was agreed to be sold to the Petitioner. As per prayer clause (a), directions were sought against Respondent No.1 to execute the Sale Deed in favour of the Petitioner in compliance with registered agreement of sale dated 11^th March, 1996. At this stage only it is relevant to note that although agreement was executed with the Respondent No.1, his brother – Respondent No.2 was impleaded as party to the suit.

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5 The said suit was filed on 18^th December, 2012. The written statement was filed on 8^th June, 2016. In the written statement, inter alia, it has been contented that the suit property was belonging to the father of Respondent Nos. 1 & 2 i.e. Nivrutti Jagtap. It is further contended in the written statement that before the actual order of allotment said, Nivrutti

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Jagtap expired and, thereafter, the land was allotted to all legal heirs and representatives of the suit i.e. Respondent Nos. 1 & 2 and two sisters. It is contended that the suit agreement was executed as security for the loan obtained from the plaintiff.

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6 Thereafter, Petitioner’s filed application seeking amendments bearing Exh. 21 in said suit on 7^th February, 2017. By the proposed amendments, two sisters were proposed to be impleaded as Defendant Nos. 3 & 4 and following paragraph was proposed to be inserted as paragraph 4-A:-

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ß4&v lnjhy nkok feGdr dS- fuo`Rrh Jhirh txrki ;kaps okjlkpk dqVqacdrkZ Eg.kwu izfroknh u a -1 ;kaps ukos feGkyh gksrh o rh R;kauh dqVqackps xjtsdfjrk vkf.k Qk;n;kdfjrk oknhauk fodzhpk O;ogkj Bjowu R;kapsdMwu ekscnyk jDde dqVqackdfjrk ? ksryh- rn~uarj oknhpk gDd Mkoy.;kdfjrk okjl ukasnh d:u ?ksrY;k- tjh ;k okjl ukasnh dsY;k vlR;k rjh >kysyk O;ogkj gk laiq.kZ dqVqackps orhus dsysyk vlY;kus R;kaph iqrZrk d:u ns.;kphgh laiq.kZ dqVqackph Eg.kts izfroknh ua- 1 rs 4 ;kaph tckcnkjh gksrh vkf.k vkgs-Þ

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7 By order dated 22^nd August, 2017, passed below Exh. 21 in Regular Civil Suit No. 6 of 2013, the learned 3^rd Joint Civil Judge, Junior Division, Daund, rejected the said application on the ground that same changes the nature of the suit and new theory has been put up by the Petitioner.

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8 Perusal of the plaint and the proposed amendment shows that names of sisters, who according to Respondent Nos. 1 & 2 are the coowners were proposed to be added as parties to the suit. By the proposed amendment, contention was raised to the effect that the sale was for legal necessity of the entire family.

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9 It is very clear that the suit was filed for specific performance of the agreement of sale dated 11^th March, 1996 and even after

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amendment of the plaint, the said suit remains to be suit for specific performance. Therefore, there is no change in the nature of the suit. By the proposed amendment what is sought to be done is to incorporate reasons for the suit transaction. Thus, by the proposed amendment, the better particulars regarding suit transactions are provided. The sisters of the Respondents who are co-owners of the suit property are necessary parties to the suit in view of the contention raised by the Petitioner that the sale is on behalf of the entire family of the Respondents and for legal necessity.

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10 As far as contention of the learned Counsel appearing for the Respondents that there is change in the cause of action is concerned, a perusal of the plaint shows that cause of action is refusal to perform the agreement dated 11^th March, 1996. By proposed amendments, there is no change in the cause of action. What is sought to be done by proposed amendments is giving reasons for the execution of the agreement of sale dated 11^th March, 1996.

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11 It is an admitted position that issues are not yet framed and, therefore, trial has not yet begun. It is well settled legal position that as far as pre-trial amendments are concerned, the same are to be allowed liberally.

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12 Mr. Kachare, learned Counsel appearing for the Respondents relied on the judgment of Supreme Court in the case of Revajeetu Builders and Developers (supra). The Supreme Court has held that 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 the real question in controversy. If that condition is not satisfied, the

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amendment cannot be allowed. This is the basic test which should govern the Courts’ discretion in grant or refusal of the amendment. It is held that the general principle is that courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. It is further held that the other important condition which should govern the discretion of the court is the potentiality of prejudice or injustice which is likely to be caused to the other side. The Supreme Court also laid down the factors to be taken into consideration while imposing cost at the time of grant of amendment application.

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13 In the present case, admittedly, suit is for specific performance of the contract. By the proposed amendment, reasons for execution of contract are sought to be incorporated. Thus, amendment is necessary for the determination of the real question is controversy. By amendment, the co-owners are sought to be impleaded as party. The reasons proposed to be incorporated are of legal necessity of the family. Apart from the Respondent No.1, who executed the suit agreement in favour of the Petitioner, his brother- Respondent No.2 is already party to the suit and now the sisters are sought to be impleaded as parties. Thus, there will not be any prejudice to the Respondents. They will get opportunity to file additional written statement to the amended plaint.

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14 There is nothing to show that proposed amendment is malafide. It is admitted position that the trial has not yet started. There is no basis for the reasoning given by the Trial Court that by proposed amendment, nature of the suit is going to be changed. The suit is for

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specific performance and even after the amendment, the suit will remain as the suit for specific performance. There is no substance in the reasoning given by the learned Trial Court that new theory is sought to be inserted in the plaint. By the amendment, only reasons for execution of agreement of sale are proposed to be inserted. Thus, the impugned order is liable to be quashed and set aside.

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15 The Writ Petition is disposed of by passing following order:(a) The impugned order dated 22^nd August, 2017, passed by lerned 3^rd Jt. Civil Judge, Junior Division, Daund below Exh. 21 in Regular Civil Suit No. 6 of 2013 is quashed and set aside and said application at Exh. 21 is allowed, subject to payment of cost of Rs.10,000/- (Rupees Ten Thousand only) to the Petitioner;

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(b) The stay to the further proceedings of Regular Civil Suit No. 6 of 2013 granted by this Court by order dated 4^th May, 2018 is vacated forthwith;

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(c) Parties to appear before the concerned learned Civil Judge, Junior Division, Daund on 24^th August, 2021 and produce copy of this order before the Court;

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(d) Petitioner to amend the plaint within two weeks from 24^th August, 2021 and pay cost of Rs.10,000/- to the Defendants or to deposit the same in the learned Trial Court on or before 31^st August, 2021;

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(e) Petitioner to amend the plaint within two weeks from 24^th August, 2021, provided cost imposed aforesaid is paid or deposited;

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(f) Needless to clarify that Respondents are entitled to file additional written statement to the amended plaint.

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16 Parties to act on the ordinary copy of this order duly authenticated by the Associate/ Sheristedar of this Court.

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(MADHAV J. JAMDAR,J.)

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Shri. Sonappa Genu Khade, through P.a.Holder Shri. Hiralal Sonappa Khade v. Shri. Shivaji Nivrutti Jagtap and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

Shri. Sonappa Genu Khade, through P.a.Holder Shri. Hiralal Sonappa Khade v. Shri. Shivaji Nivrutti Jagtap and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Coram

Case details

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