1. Rule. Rule made returnable forthwith.
2. Considering the short controversy in the Writ Petition, the parties are heard for final disposal of the Writ Petition. An exception is taken by the petitioner/plaintiff to the refusal of the Trial Court to exercise jurisdiction under Order VI Rule 17 of the Civil Procedure Code. Feeling aggrieved by the Order dated 15.03.2023 passed by learned Civil Judge Senior Division, Gangakhed below Exhibit-45 in Regular Civil Suit No.117 of 2016, the Petitioner is before this Court.
3. Brief Facts of the case:
3.1 Suffice to note, the petitioner is paternal aunt of the respondent. It is submitted that on the auspicious day of Ramzan Eid in the year 2010, the petitioner executed an Oral Hiba in respect of the suit property in favour of the respondent. On the basis of the Oral Hiba, the respondent claimed to have acquired ownership over the suit property.
3.2 The petitioner contended that in fact no such Hiba was ever executed by the petitioner in favour of the respondent. Still, the respondent filed Regular Civil Suit No.161 of 2010 in the Court of learned Civil Judge Senior Division, Gangakhed seeking declaration of ownership and injunction. That, the said suit came to be compromised between the parties and culminated in a decree in terms of the reliefs prayed therein. On the basis of the compromise decree, a mutation also took place in the name of respondent.
3.3. The petitioner filed present suit i.e. Regular Civil Suit No.117 of 2016 in the Court of learned Civil Judge Senior Division, Gangakhed seeking revocation of the Oral Hiba that was allegedly executed by the petitioner in the name of respondent. Consequential relief of injunction was also sought. The defendant appeared in the suit and issues came to be framed. The defendant denied that the Hiba never existed. Obviously, the defendant sought to dispute the suit placing reliance on Regular Civil Suit No.161 of 2010 and the compromise decree arrived in the said suit.
3.4. After the issues were framed, an application at Exhibit-45 came to be filed by the petitioner seeking amendment in the pleadings. This application is obviously under Order VI Rule 17 of the Civil Procedure Code. By virtue of the said application, the petitioner sought to incorporate a prayer in the suit seeking cancellation of the compromise decree passed in Regular Civil Suit No.161 of 2010. The petitioner also sought to add pleadings to justify the additional prayer. Another amendment was sought to challenge the dispossession of petitioner’s tenant over the suit property and for recovery of possession. The said application was opposed by the defendant. After hearing the parties, the Trial Court vide order dated 15.03.2023 pleased to reject the said application. Thus, the plaintiff is before this Court assailing the order dated 15.03.2023 passed by learned Civil Judge Senior Division, Gangakhed below Exhibit-45.
4. Submissions:
4.1. Mr. H. I. Pathan, learned Advocate for the petitioner submits that very base of the suit is compromise decree in Regular Civil Suit No.161 of 2010. He would submit that the compromise decree is a bogus one and that his client was made to enter into the said compromise by playing fraud and mischief upon her. Mr. Pathan submits that the pleadings to substantiate the prayer seeking cancellation of the compromise decree are necessary to be brought on record considering that the addition of the prayer clause itself is also necessary for correct adjudication of the controversy.
4.2. So far as other amendment is concerned, Mr. Pathan submits that on the basis of mutation entry and refusal of injunction order in another suit no.95 of 2018, the defendant has dispossessed petitioner’s tenant. Hence, it was just and proper to allow the petitioner to amend prayer clause in the suit to seek restoration of the possession of the suit property in favour of the petitioner/petitioner’s tenant.
4.3. Mr. Pathan to conclude his argument, would submit that the Trial Court has not considered that the amendment is neither going to change the nature of the controversy between the parties nor it will cause any prejudice to the other side. To sum up his arguments, Mr. Pathan lastly submits that for better adjudication of the controversy between the parties and to bring subsequent events on record, the Trial Court ought to have allowed the application. With this, Mr. Pathan prays to allow the Writ Petition.
4.4. Mr. M. M. Patil Beedkar, learned Advocate for the defendant/ respondent would advocate the findings rendered by the Trial Court. He submits that apparently the petitioner was well aware about the compromise decree in Regular Civil Suit No.161 of 2010. That, there is nothing on record in the application to indicate as to what prevented the plaintiff from seeking such relief at earlier stage. Mr. Patil submits that the alleged dispossession of the petitioner’s tenant as per her owner version is consequent to an order passed by the Competent Court in Regular Civil Suit No.95 of 2018. As such, the consequent amendment is also not justifiable in this Suit. Standing in support of impugned order, Mr. Patil prays to dismiss the Writ Petition.
5. Discussion:
5.1. With the able assistance of respective learned Advocates for both the sides, I have gone through the pleadings of the parties. It would be pertinent to note that the in paragraph nos.2 and 3 of Exhibit-1 to the present suit, the petitioner/plaintiff has referred to the Regular Civil Suit No.161 of 2010 and compromise decree arrived therein and the mutation effected pursuant to the said compromise decree. At this juncture, Order VI Rule 17 of the Civil Procedure Code needs to be read with Order II Rule 2 of the CPC. Both the provisions are reproduced below for the sake of convenience:
| Order VI Rule 17 17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Order II Rule 2 2. Suit to include the whole claim.—(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish and portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.—A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation.—For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. |
5.3. Now, to pass the test of due diligence incorporated in Order VI Rule 17 of the Civil Procedure Code, the petitioner had to make out a strong case as to why such relief could not be earlier sought while filing the suit itself. Besides, Order XXIII Rule 3A of the Civil Procedure Code also comes into play at this juncture. Order XXIII Rule 3A reads thus:
| Order XXIII Rule 3A 3……. 3A. Bar to suit.—No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. |
5.5. Now, so far as the another amendment is concerned i.e. challenge to the dispossession and recovery of the possession, the plaintiff has given reference to Regular Civil Suit No.95 of 2018. The Trial Court has rightly observed that the petitioner is party to Regular Civil Suit No.95 of 2018 wherein in fact the compromise decree in Regular Civil Suit No.161 of 2010 is under adjudication before the said Court. Petitioner has contended that pursuant to the order in Temporary Injunction Application in the suit no.95 of 2018, the defendants forcibly evicted petitioner’s tenant from the suit property. An amendment consequent to any order passed in that suit can not be allowed in present suit, rather it would be a part of the said other suit in which such order is passed.
5.6. For the reasons recorded above, I do not find any reason to reverse the impugned order. I find that no successful case could be made out before me to cause interference in the findings rendered by the Trial Court. The Writ Petition stands dismissed. Rule stands discharged.