Shri. Kishor Anand Mane Vs Shri. Vijay Appasaheb Chavan (Since Decd.) through Lrs. and Anr.

wp-11334/19.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 11334 OF 2019

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Kishor Anand Mane.

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...Petitioner.

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 Versus

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Vijay Appasaheb Chavan
Deceased through Heirs

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A.Minakshi Vijay Chavan and Others.

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..Respondents.

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___________________
Mr. R. B. Huded and Mr. M. V. Chavan for the Petitioner.
Mr. Padmanabh D. Pise for the Respondents.

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 Coram : Sharmila U. Deshmukh, J.
 Date : March 23, 2023.

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P. C. :

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1.The petition challenges the order dated 20th March 2019 passed

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by the trial Court allowing the respondent-defendant’s application for the
amendment of written statement.

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2.Regular Civil Suit No.146 of 2012 was instituted by the petitioner
herein seeking possession of the subject property, which according to
the petitioner was rented to one Ram Bhosale and the respondent, who
claims to be the nephew of said Ram Bhosale, started to occupy the said
property. It is the case of the petitioner that the respondent has no

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Digitally signed patilsr by SACHINRAMCHANDRA SACHIN PATIL RAMCHANDRA PATIL Date: 2023.03.27 19:01:00 +0530

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authority to remain in possession of the said property, and as such the
suit (RCS No.146 of 2012) came to be instituted. In the year 2019, an
application for amendment of written statement came to be filed by the
respondent seeking incorporation of paragraph 7A, which reads thus :

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“7v½ nkok feGdrhe/;s ;k izfooknhapk lu 1987 iwohZ iklwu HkkMsd# gDdkus dCtk vkgs- rFkkih ;k oknhauh izLrqrpk nkok ekydh o#u dCtk feG.kslkBh nk[ky dsysyk vkgs rks nkok eqnrhr ulysus dk;|kus pkyw ‘kdr ukgh rks nkok j)ckry gks.ksl ik= vkgs-”

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3.Heard learned counsel for the parties. Learned counsel for the
petitioner submits that in the present case, the affidavit of evidence was
filed on 27th November 2015 and in the year 2019, application for
amendment of the written statement is filed, which does not comply with
the requirement of the proviso to Order VI Rule 17 of the Code of Civil
Procedure, 1908 [for short “CPC”]. In support of his submission, learned
counsel for the petitioner relied upon the decision of Apex Court in
Pandit Malhari Mahale v. Monika Pandit Mahale [(2020) 11 SCC 549),
Vidyabai v. Padmalatha [(2009) 2 SCC 409] and Chander Kanta Bansal
v. Radinder Singh Anand [(2008) 5 SCC 117].

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4. Per contra, learned counsel appearing for the respondents

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submits that the power (to grant amendment) is a discretionary power
and can be exercised at any stage of the proceeding. He further submits
that there is no prejudice which has been caused to the petitioner by
allowing the application for amendment of written statement, and the
same is compensated by imposition of cost. He would further submit
that by the proposed amendment, the issue of limitation is being raised.
In support of his submission, learned counsel appearing for the
respondents relied upon decision of the Apex Court in Life Insurance
Corporation of India v. Sanjeev Builders Private Limited [AIR 2022 SC
4256].

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5.It is well settled that amendments to the pleadings are to be
liberally allowed. However, the proviso to Order VI Rule 17 of CPC
circumscribes powers of the Court to allow a post-trial amendment
unless the requirements of the said proviso are met. In the present case,
admittedly, the affidavit of evidence has been filed in the year 2015 and in
the year 2019, an application for amendment raising an issue of limitation
is filed by the respondent. Perusal of the said application, which is at
page 20 to the petition, shows that there is no averment that the issue
which is sought to be raised by way of proposed amendment was not
within the knowledge of respondent (defendant) or could not be, in spite

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of due diligence, raised before the commencement of trial. On the other
hand, it has been the consistent case of the respondent that he is in
possession of the suit premises as a tenant and as such the application
does not set out the reason why the said issue of limitation could not
have been raised prior to the commencement of trial.

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6.The purpose of amendment to the CPC, incorporating the
proviso to Order VI Rule 17, is to minimize the delay in trial and ensure all
the issues are raised at the relevant time.

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7.As far as the decision in LIC v. Sanjeev Builders (supra) which
has been relied upon by learned counsel appearing for the respondent is
concerned, there is no quarrel with the proposition that the amendments
are to be liberally allowed. It would be worthwhile to note the guidelines
set out in the said decision, in particular guideline No.(XI), which reads

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thus :

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“Where the amendment is sought before commencement
of trial, the Court is required to be liberal in its approach.
The Court is required to bear in mind the fact that the
opposite party would have a chance to meet the case set
up in amendment. As such, where the amendment does
not result in irreparable prejudice to the opposite party, or
divest party of an advantage which it ha secured as a result
of an admission by the party seeking amendment, the

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amendment is required to be allowed. Equally, where the
amendment is necessary for the Court to effectively
adjudicate on the main issues in controversy between the
parties, the amendment should be allowed.”

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.Learned counsel appearing for the respondent has not been
able to demonstrate that the Apex Court in LIC v. Sanjeev Builders
(supra)was dealing with the case of post-trial amendment and in the
context of that matter, has permitted the amendments to be carried out
which do not meet the requirements of Order VI Rule 17 of CPC.

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8.The decisions relied upon by learned counsel for the petitioner
are squarely applicable to the facts of the present case inasmuch as the
Apex Court in Pandit Mahale (supra) has specifically held that while
dealing with the post-trial amendment, there has to be a finding that in
spite of due diligence, the party could not raise the matter before
commencement of the trial. In the present case, the perusal of the
impugned order does not show any such satisfaction being recorded by
the trial Court.

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9.In my opinion, considering the decision of the apex Court relied
upon by learned counsel for the petitioner, which are squarely applicable
to the facts of the present case, the impugned order is clearly

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unsustainable. It would be worthwhile to note that permitting the
amendment would result in framing of additional issue of limitation
which would set the clock back and put the trial to the stage of framing
of issues, which is precisely what is sought to be dissuaded by virtue of
the enactment of proviso to Order VI Rule 17 of CPC.

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10.In the light of above, the petition succeeds. The impugned order
is hereby quashed and set aside.

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[Sharmila U. Deshmukh, J.]

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Shri. Kishor Anand Mane v. Shri. Vijay Appasaheb Chavan (Since Decd.) through Lrs. and Anr.

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Shri. Kishor Anand Mane v. Shri. Vijay Appasaheb Chavan (Since Decd.) through Lrs. and Anr.

Case brief

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