2001(4) ALL MR 811
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
R.M.S. KHANDEPARKAR, J.
Tulsabai W/O Laxman Suse Vs. Indubai W/O Pandurang Suse & Ors.
Writ Petition No. 330 of 1991
15th March, 2001
Petitioner Counsel: Shri. L.B.PALLOD
Respondent Counsel: Shri. B.R.Sable,Shri. V.D.SALUNKE
(A) Civil P.C. (1908), O.6, R.17 - Amendment of written statement - Document sought to be produced in relation to pleadings which are sought to be included by way of amendment - Such document not causing prejudice to plaintiffs - Amendment could be allowed. (Paras 4,5)
(B) Constitution of India, Art.226 - Alternative remedy - Order rejecting amendment of WS - Order passed in 1984-85 and WP against order filed in 1985 - Rule issued and proceeding in suit stayed since then - Order apparently appearing to be arbitrary and illegal - No purpose would be served by driving petitioner to pursue remedy in revisional jurisdiction after long lapse of time. (Para 6)
2. The petitioner challenges the orders dated 7.11.1984 and 4.7.1985 passed by the learned C.J.J.O., Shevgaon in R.C.S. No.202 of 1979. By the first order, the trial Court has rejected the application for amendment and by the latter order, has rejected the application for production of the document filed by the petitioner.
3. The facts in brief, relevant for the decision are that the respondents nos. 1 and 2 filed suit for partition of the said property. The defendant no.1 by name Laxman who was husband of the petitioner and father of the respondents no.4 and 5 contested the suit on the ground that the property in question is not an ancestral property but is self-acquired property and cannot be subjected to partition. During the pendency of the suit, the defendant no.1 Laxman expired. The defendant no.3 was also subsequently transposed as the Plaintiff No.3 as she had agreed for the relief prayed for in the suit by the plaintiffs. Subsequent to the death of the defendant no.1, the petitioner and the respondent nos. 4 and 5 who are the defendants no.2,4 and 5 respectively in the suit, filed two applications, one for amendment of the written statement and another for production of the document. Application for amendment was to the effect that during the life time Laxman defendant No.1 had executed Will dated 30.7.1982 and that, he expired on 30.9.1982. By virtue of the said Will, the ownership rights of the deceased Laxman stood bequeathed in favour of the petitioner and the respondents no.4 and 5 and these facts having not brought on record, were sought to be brought on record in the form of additional pleadings by amending the written statement. Simultaneously, the application was filed seeking leave to rely upon and produce the Will dated 30.7.1982 on record by the petitioner and the said respondents. Both the said applications were objected by the plaintiffs and were rejected by the impugned order. The rejection was on the ground that there was delay in approaching the Court with the pleadings in question and that, the said pleadings are inconsistent to the original plea raised by the defendant in their written statement.
4. Upon hearing the learned Advocates for the parties and on perusal of the records, it is seen that in the original written statement, the defendant has clearly raised defence to the effect that the property in question was not an ancestral property but, it was his self-acquired property. By the amendment application what was sought to be pleaded was that during the life time of the defendant no.1, he had executed the will whereby he had bequeathed his rights in the property in favour of the petitioner and the respondents no.4 and 5 and subsequent to the death of the defendant no.1, in accordance with the said will, the petitioner and the respondents no.4 and 5 have acquired rights to the property as the exclusive owners in place of the defendant no.1. It is not understood as to how this plea can be considered as inconsistent to the original pleadings in the written statement. The pleadings sought to be added to the original written statement nowhere disclose any statement of fact contrary to the facts pleaded in the original pleadings. Besides, the said facts which are sought to be included by way of amendment, relate to the fact which have occurred subsequent to the filing of the suit as well as filing of the original written statement. Records disclose that the original written statement was filed on 30th October, 1979. The will was executed on 30.7.1982 i.e. much after filing of the original written statement. Undisputedly, the defendant no.1 was alive when the suit and original written statement was filed and whatever facts which are sought to be pleaded have occurred after filing of the original written statement. No doubt, there appears to have been delay of some months in filing the application for amendment. However, that by itself cannot be a justification to reject the amendment unless it is shown that the pleadings sought to be added would defeat any right which might have been accrued in favour of the plaintiffs on account of the pleadings in the original written statement or such delay. There is absolutely no justification for rejection of the amendment to the pleadings as sought for. Undisputedly, the document which is sought to be produced is in relation to the pleadings which are sought to be included by way of amendment and the said document, in any case, does not cause prejudice to the plaintiffs.
5. The learned Advocate for the respondents plaintiffs did try to contend that allowing the amendment at the late stage as well as production of the document would result in prejudice to the plaintiffs. However, record does not disclose that there is any occasion for any prejudice being caused to the plaintiffs on account of amendment being allowed and document being placed on record.
6. The learned Advocate for the respondents also contended that the impugned order being revisable, there is no case for interference in the writ jurisdiction. There is no doubt that the petitioner could have assailed the impugned orders by revision application. However, the fact remains that the said orders were passed in the year, 1984 and 85 and the petition was filed in the year, 1985 wherein, Rule was issued and the proceedings in the Civil Suit were stayed. The suit relates to the year, 1979. Considering the fact that the matter was pending since 1985 and the proceedings in Civil Suit being stayed since then, and the impugned orders apparently appear to be arbitrary and illegal, no purpose will be served by driving the petitioner to pursue the remedy in revisional jurisdiction under Code of Civil Procedure by rejecting the petition at this stage.
7. In the result, therefore, the petition succeeds. The impugned orders are hereby set aside. The application filed by the petitioner for amendment as well as for production of documents i.e. Will in question and rejected by the impugned orders, are hereby allowed. Considering the fact that the suit relates to the year, 1979 it is necessary to direct the trial Court to expedite the hearing and to dispose of the same within six months from receipt of the writ of this Court. The petitioner is permitted to submit the writ to the trial Court by Hamdast. Necessary notice requiring the parties to appear in the trial Court on 9th April, 2001 is received and noted by the learned Advocate for the petitioner on behalf of the petitioner as well as on behalf of the respondent no.4 and 5 who are undisputedly, sons of the petitioner and by the learned Advocate for the respondent no.1 to 3 on their behalf. The amendment to be carried out by the petitioner to the written statement on or before 9th April, 2001. The parties to the suit to appear before the trial Court on 9th April, 2001 at 11.30 a.m. and the trial Court shall dispose of the suit within a period of six months from the date. The parties shall render all cooperation to the trial Court in that regard. The trial Court should file compliance report of the directions issued hereby, in this Court on or before 15th October, 2001. Rule is made absolute in the above terms with no order as to costs.