Writ Petition No.801 of 2009

24th June, 2009

Petitioner Counsel: Mr. D. K. KULKARNI
Respondent Counsel: Mr. S. V. GANGAPURWALA

JUDGMENT

JUDGMENT :- Rule.

2. Rule made returnable forthwith. By consent of the parties, the writ petition is taken up for final hearing at the stage of admission itself.

3. By the present writ petition under Article 227 of The Constitution of India, the petitioner has challenged the order passed below Exh.116 in Reg.C.S. No.819/1993, pending on the file of 7th Jt. Civil Judge, J.D. Aurangabad, by which the learned Trial Judge has allowed the application for amendment under Order 6, Rule 17 of CPC, as according to the first respondent, during the pendency of the suit before the Trial Court, the respondent nos.3 to 6 have relinquished/surrendered their share in favour of respondent no.1. Inspite of this amendment was opposed by the petitioner herein on the ground that the trial has already commenced, if the proposed amendment is allowed, it will change the nature of the suit, and lastly and most importantly that the cause of action to the suit and the proposed amendment are totally based on different causes. Without considering these points, the learned Trial Judge was pleased to allow the application vide order dated 04/12/2008. The impugned order is the subject matter of this writ petition.

4. With the assistance of learned advocate appearing for petitioner and for the first respondent, perused the record and proceeding by way of compilation and the facts which are not under dispute before the Lower Court as well as before this Court. The Predecessor in title of the present petitioner and defendant nos.1(A) to 1(F) in RCS No.819/1993 have filed suit for partition and possession against one Ishwardas, who is arrayed as defendant no.2 in the suit before the Trial Court and against one Kanhaiyalal Narsidas, whose heirs were added as defendant nos.3 to 6 in the suit before the Trial Court. In the Trial Court, heirs of defendant no.2 i.e. son of defendant no.2 is plaintiff in that suit while the other heirs are arrayed as defendant nos.7 to 12 in that suit. The said suit RCS No.467/1979 was decreed and predecessor in title of the present petitioner Ranchoddas, the second defendant to the suit and predecessor in title of defendant nos.3 to 6 Kanhaiyalal, each were declared having 1/3rd share in the subject matter/properties in that suit. It is pertinent to note that the present suit RCS No.819/1993 filed by the first respondent for the declaration that the decree passed in RCS No.467/1979 which is confirmed in First appeal as well as in the Second Appeal is not binding on them, and as it is not binding on them, it is obtained by fraud and for the declaration that not to pass the final decree to effect the partition on the basis of that decree in the said suit and for perpetual injunction for the execution of the decree based upon the judgment delivered in the said suit. Thus the fact is clear that the scope of subject matter of the suit before the Lower Court is the decree obtained in the suit by way fraud to be set aside and not to effect the execution of the said decree.

5. Before considering the submissions across the bar, I have to take a serious note of the fact that the respondent no.1 is not a party to the suit of which he has challenged the decree, which was allegedly obtained by fraud as his father was party to that suit. Second and most important aspect is that if the suit is filed for declaration that the decree is obtained by fraud and for perpetual injunction not to execute that decree, then the Surrender Deeds dated 04/06/2004 and 07/07/2004 executed in his favour by defendant nos.3 to 6 who have obtained their share through their father Late Kanhaiyalal who was party as defendant no.2 to the suit of which the judgment and decree was challenged as obtained by fraud, if that decree is under challenge, then the shares obtained under that decree is also the subject matter sub-judiced before the Trial Court and if the subject matter of the judgment and decree allegedly obtained by fraud is the subject matter before the Trial Court, then on the basis of part of that decree if the property is surrendered by way of Relinquishment Deed even though registered as stated across the bar by learned advocate for the first respondent, it is nothing but in one breathe to challenge the decree on the ground obtained by fraud, but in the second breathe to use and to enjoy the fruits of that decree under the Deed of Surrender and if it is so, even though it is a subsequent event after the institution of the suit, then it will certainly change the nature of the suit and will give by-pass to the entire subject matter which is sub-judiced before the Trial Court and will certainly cause the prejudice to the rights vested in the petitioner herein, who is defendant no.1(D) in the Trial Court. All these facts are not seriously considered by the Trial Court and drawn a total wrong and illegal conclusion.

6. In the premise, the order dated 04/12/2008, of allowing the application at Exh.116 is against the provisions of Law, hence require to be quashed and set aside. Accordingly application at Exh.116 is hereby rejected by quashing and setting aside the order dated 04/12/2008 passed by the 7th Jt. Civil Judge, J.D. Aurangabad.

7. Rule thus made absolute as indicated above. The Writ petition stands disposed of accordingly. No order as to costs.

Ordered accordingly.