Second Appeal No.242 of 2013

4th April, 2014

Petitioner Counsel: Mr. P.A. GODE
Respondent Counsel: Mr. M.R. JOHARAPURKAR

Cases Cited:
Abeda Iqbal Patel Vs. Cormorant Investment Pvt. Ltd., 2009 (3) Bom.C.R 338 [Para 7]
Pandit Ishwardas Vs. State of Madhya Pradesh & Ors., (1979) 4 SCC 163 [Para 7]
Estralla Rubber Vs. Dass Estate (P) Ltd., 2001(4) ALL MR 484 (S.C.) =(2001)8 SCC 97 [Para 7]
Salem Advocate Bar Assn. Vs. Union of India, 2005(5) ALL MR 876 (S.C.) =(2005) 6 SCC 344 [Para 10]
Rajkumar Gurawara (Dead) Through. L.Rs. Vs. S.K.Sarwagi and Co. Pvt. Ltd. & Anr., 2008 ALL SCR 2104 =(2008) 14 SCC 364 [Para 11]
Chander Kanta Bansal Vs. Rajinder Singh Anand, 2008(4) ALL MR 423 (S.C.) =(2008) 5 SCC 117 [Para 12]
Ajendraprasadji N.Pandey & Anr. Vs. Swami Keshavprakeshdasji N. & Ors., 2007 ALL SCR 734 =2006 (12) SCC 1 [Para 13]
Baldev Singh & Ors. Vs. Manohar Singh & Anr., 2006(5) ALL MR 107 (S.C.) =2006 (6) SCC 498 [Para 14]
South Konkan Distilleries & Anr. Vs. Prabhakar Gajanan Naik & Ors., 2008 ALL SCR 2485 =AIR 2009 SC 1177 [Para 15]
North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Dass (D) by L.Rs., 2008 ALL SCR 1469 =2008 AIR SCW 3159 [Para 16]
Bollepanda P. Poonacha & Anr. Vs. K.M.Madapa, 2008 ALL SCR 1452 =2008 AIR SCW 2895 [Para 16]
L.S. Leach and Co. Ltd. & Anr. Vs. Messrs. Jardine Skinner and Company, AIR 1957 SC 357 [Para 16]
AIR 1974 SC 1126 [Para 16]
AIR 1978 SC 84 [Para 16]
2000 AIR SCW 43 [Para 16]
AIR 2000 SC 614 [Para 16]

JUDGMENT

JUDGMENT :- This appeal is filed by the appellant (original defendant) against the Judgment and Order dated 2.1.2013 passed by the Principal District Judge, Gondia in Regular Civil Appeal No.51 0f 2012, which was allowed. The said appeal arose from the Judgment and Order dated 24.06.2008 passed by the trial Court i. e. the Court of Civil Judge (Sr.Dn.), Gondia in Special Civil Suit No. 14 0f 2002 instituted for recovery of possession of the suit premises. The said suit was dismissed.

2. The brief facts are as under :-

The suit was instituted for possession on 30.4.1994. The dispute relates to the land bearing Nazul plot No.18, Sheet No. 7, admeasuring 235.09 Sq. Meters = 2733 Sq. feet having double storied building constructed on it - at Katangi line Road, Laxmibai Ward at Gondia. The description of the suit property is not disputed by the defendant in the Written Statement, dated 18.11.1997. Case of the plaintiffs is that Birdibai Agrawal, grand mother of plaintiff no.1 had executed a Will dated 5.7.1991, bequeathed the suit building consisting of two stories including suit shops and rooms in favour of the plaintiffs. Birdibai died on 3.12.1992 at Gondia. The plaintiff became owners and are paying Municipal Taxes etc. after their names were entered in the revenue record. During the lifetime of Birdibai, the plaintiffs and the defendant were running the shop under the name and style "Arun Book Center and Arun General Stores" in the suit shop. The plaintiff no.1 and the defendant, who were licensees, had agreed to vacate the suit premises by 11th November, 1991. Plaintiff no.1 had vacated, but the defendant did not. The license came to an end after the death of Birdibai. The plaintiff who became owner of the suit premises asked the defendant to vacate the suit premises, but the defendant did not pay heed to the request, despite receipt of notice by Registered Post A/D. issued on 2.7.1993 and received by the defendant on 3.7.1993. The plaintiffs claimed possession and damages from the defendant @ Rs.20/- per day for suit rooms and Rs.100/- for the suit shops with effect from 1.8.1993 till the date of institution of the suit and prayed for inquiry into mesne profits. The defendant had contested the suit claim and denied the liability to vacate the suit premises in his possession. The defendant also disputed genuineness of the Will. The trial Court had found that the plaintiffs have proved that they are owners by virtue of Will by Birdibai, but dismissed the suit on the ground that Special Civil Suit No.24 of 2004 filed by Radhesham through his Power of Attorney (present defendant Mahendra Kumar) was decreed for the agreement to Sell dated 24.2.2003 was enforceable and the defendant is in valid and legal possession of the suit premises on behalf of the Radhesham.

3. The prayer in Special Civil Suit No.14 of 2002 was in respect of possession of the suit premises, damages and mesne profits in respect thereof. The trial Court dismissed the suit denying the relief of possession and refused to order inquiry into mesne profits.

4. The findings of the trial Court were assailed on the ground that, in the absence of any pleading on behalf of the defendant, it erred in law in holding that possession is with Radhesham (decree holder in Special Civil Suit No.24 0f 2004 awaiting execution of the decree as the appeal against it is pending).

5. The first Appellate Court's findings were that the plaintiffs were entitled to recover possession of the suit property; damages @ Rs.20/- per day during the period between 1.8.1983 till 30.4.1994 and inquiry into mesne profits in respect of the suit property was ordered with effect from the date of decree. The first Appellate Court had ordered delivery of possession of the suit premises within 60 days. Thus the First Appeal was allowed and the suit was decreed.

6. This Second Appeal was admitted on 3.10.2013 on the following substantial question of law :

Whether the Appellate Court was right in not allowing the application for amendment of the Written Statement filed by the appellant when the Special Civil Suit No. 24 of 2004 filed for enforcing specific performance of agreement to sell executed in favour of one Radheshyam Agrawal which stipulated a condition that Radheshyam Agrawal would recover possession of the suit property from the respondents had been decreed in favour of Radhesham Agrawal?

My answer to the above substantial question of law is in the affirmative for the reasons stated below.

7. On behalf of the defendant-appellant, it is submitted with reference to the ruling in Abeda Iqbal Patel vs. Cormorant Investment Pvt. Ltd. reported in 2009 (3) Bom.C.R 338 (Para 7) that the amendment proposed in the Written Statement ought to have been allowed by condoning delay to amend the Written Statement. Delay to amend the Written Statement could have been condoned. According to the learned Counsel for the appellant, a new plea can be allowed at the appellate stage. He made reference to the rulings in Pandit Ishwardas vs. State of Madhya Pradesh and Others reported in (1979) 4 SCC 163 and Estralla Rubber vs. Dass Estate (P) Ltd., (2001)8 SCC 97 : [2001(4) ALL MR 484 (S.C.)] (Paras 5 and 7). The learned Counsel contended that the jurisdiction to decide the application for amendment of the Written Statement was wrongly exercised by the first Appellate Court.

8. In view of Order VI, Rule 17 of the Code of Civil Procedure, on behalf of the respondents (original plaintiffs), it is urged that nature of amendment sought to be introduced is relevant. Learned Counsel for the respondent submitted that, in the Written Statement, there was no dispute about the description or identity of the suit property. Hence, amendment was held unnecessary and mala fide to delay the fruits of proceedings in the suit instituted in the year 1994. The appellant had filed Writ Petition No.1709 of 2004 in this Court, which was not pressed and withdrawn by the Appellant with liberty to raise contention in the First Appeal. Thus, according to the learned Counsel for the respondent, the much belated attempt at the stage of Second Appeal by the appellant to amend the Written Statement is afterthought & mala fide - only with a view to delay the inevitable fruits of the decree in the facts & circumstances of this case.

9. Section 99 of the Civil Procedure Code contemplates that no decree can be reversed or varied nor the appeal can be remanded for non-joinder of the party or causes of action. There was no any cross-examination of the plaintiffs in respect of the suit filed by Radheshyam pending as First Appeal. There was no any application in the trial Court at or before the date of hearing of the suit to implead Radheshyam. The first Appellate Court had clarified that Radheshyam was not a necessary party to the suit. The suits relating to the agreement to sell the suit property to Radheshyam instituted by or on behalf of Radheshyam and the suit simplicitor filed by the plaintiffs to recover possession from the defendant - appellant are different suits altogether with different causes of action awaiting their results separately. Learned Advocate for the respondent, therefore, supporting the impugned Judgment and Order, has prayed for dismissal of the appeal.

10. Legal position in this regard must be discussed. The Hon'ble Supreme Court of India in the case of Salem Advocate Bar Assn. v. Union of India, [(2005) 6 SCC 344] : [2005(5) ALL MR 876 (S.C.)] has held thus:

"It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial.

11. The Hon'ble Supreme Court of India in the case of Rajkumar Gurawara (Dead) Through. L.Rs. vs. S.K.Sarwagi and Co. Pvt. Ltd. and Anr., decided on 14.5.2008 {(2008) 14 SCC 364} : [2008 ALL SCR 2104] has observed thus :

"It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; & (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected."

12. The Hon'ble Supreme Court of India in the case of Chander Kanta Bansal vs Rajinder Singh Anand, decided on 11/03/2008 {(2008) 5 SCC 117} : [2008(4) ALL MR 423 (S.C.)] has observed as follows:-

"It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial."

13. The Hon'ble Supreme Court of India in the case of Ajendraprasadji N.Pandey & another vs. Swami Keshavprakeshdasji N. & Ors. [2006 (12) SCC 1] : [2007 ALL SCR 734], in paragraph 57 of the decision, has observed as follows :

"It is submitted that the date of settlement of issues is the date of commencement of trial."

14. The Hon'ble Supreme Court of India in the case of Baldev Singh & Ors. Vs. Manohar Singh & Anr. [2006 (6) SCC 498] : [2006(5) ALL MR 107 (S.C.)], in paragraph 17 of the decision, has held and observed as follows :

"Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced.

15. The Hon'ble Supreme Court of India in the case of South Konkan Distilleries & Anr. Vs Prabhakar Gajanan Naik & Ors. [Decided on 09-09-2008] {AIR 2009 SC 1177} : [2008 ALL SCR 2485] has held and observed as follows :

"We are of the view that if a suit was filed on the amended claim, it was an admitted position that the said claim was barred by limitation, the question of allowing the amendment of the written statement and the counter claim, in the facts and circumstances of the case, could not arise at all. Accordingly, the courts below were fully justified in rejecting the application for amendment of the written statement and the counter claim."

16. Thus, amendment of pleadings, no doubt, is permissible even at the appellate stage provided that such amendment does not cause injustice to the other party and is necessary for determination of question in controversy (2008 AIR SCW 3159 : [2008 ALL SCR 1469], North Eastern Railway Administration, Gorakhpur .vs. Bhagwan Dass (D) by L.Rs.). Amendment enabling defendant to elaborate his defence or to take additional pleas may be allowed. Court, however, must exercise discretionary jurisdiction in judicious manner and not contrary to statutory interdict in O. 8, R. 6A of the Code of Civil Procedure (2008 AIR SCW 2895 : [2008 ALL SCR 1452], Bollepanda P. Poonacha and another vs. K.M.Madapa). It is true that technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are ordinarily allowed in the pleadings to avoid uncalled for multiplicity of litigation AIR 1957 SC 357, L.S.Leach and Co. Ltd. and another .vs. Messrs. Jardine Skinner and Company; AIR 1974 SC 1126; AIR 1978 SC 84; 2000 AIR SCW 43; AIR 2000 SC 614.

17. Coming back to the facts discussed by the first Appellate Court in this case : Special Civil Suit No. 24 of 2004 was filed by Radheshyam Agrawal against the plaintiffs-respondents in this case for specific performance of contract. The decree passed was not yet executed and thus, Sale deed was not executed in favour of decree holder Radheshyam. That being so, the plaintiffs in the present case continued as lawful owners of the suit property. Furthermore, it is to be borne in mind that the suit in the present case was instituted on 30.4.1994 when Radheshyam was nowhere in picture. It was not the case of the defendant that possession of the suit property was handed over by the plaintiffs to Radhesham or to the plaintiffs in part performance of the Contract for Sale. Radheshyam was not in possession of the suit property as on the date of the suit i.e. on 30.4.1994. There was no any such pleading by the defendant that he was in possession of the property on behalf of Radheshyam nor defendant had crossexamined the plaintiffs in this regard. The defendant was in possession of the suit property as a gratuitous licensee of Birdibai Agrawal and the said licence was revoked by the plaintiff (successor-in-title of Birdibai) in this case. Thus, the defendant was a licensee holding over as on the date of the suit. Possession of the defendant claimed on behalf of Radheshyam Agrawal over the suit property could not have been considered as valid and legal until legal transfer of the property i.e. sale deed is executed in favour of Radheshyam Agrawal (decree holder in the much subsequently instituted Special Suit No.24 of 2004) pursuant to the final decree of Specific performance of Contract. As long as the plaintiff-respondent is the lawful owner of the suit property, he is and was entitled to possess the suit property as also to claim damages and mesne profits in respect of loss of occupation thereof. Therefore, conclusion recorded by the first Appellate Court directing the defendant to deliver possession of the suit property to the plaintiffs was well reasoned, sound and correct, notwithstanding the future contingency of decree in Special Civil Suit No.24 of 2004 becoming final and probability of Radheshyam Agrawal becoming owner pursuant to sale deed to be executed as a consequence to the decree in said suit awaiting the final result in appeal.

18. In sequel to the discussion, therefore, no interference is warranted in the impugned Judgment and Order. Hence, the appeal is dismissed with costs.

Appeal dismissed.