Case Note & Summary
The writ petition before the Bombay High Court arose from a challenge to an order dated 03.05.2023 passed by the 2nd Joint Civil Judge Junior Division, Georai, District Beed, which partially allowed a review application filed by respondent no.1 under Section 114 of the Code of Civil Procedure, 1908. The underlying suit, Regular Civil Suit No.130/2004, was filed by the original plaintiff seeking perpetual injunction and a declaration that sale deed No.2041/2004 dated 20.04.2004 was not binding. The original plaintiff had died and his legal representatives were brought on record as petitioners. The respondents were the original defendants. The trial court had earlier allowed an application for amendment of the plaint (Exhibit-306) on 12.01.2023, permitting the addition of words in the claim clause to include the declaratory relief already prayed for and to implead respondent no.2 as defendant no.5. Subsequently, respondent no.1 filed a review application contending that the plaintiff had earlier waived the declaratory relief in proceedings on Exhibit-68 concerning court fees, and that the amendment was sought after 18 years without due diligence. The trial court partly allowed the review, setting aside the amendment to the claim clause. The petitioners challenged that review order in the High Court. The court framed two points for consideration: whether the amendment application could have been allowed, and whether the civil court could review the order allowing amendment even if erroneous. The court noted that the plaint already contained sufficient pleadings and a prayer for declaration, so adding the words in the claim clause would not change the nature of the suit. It also referred to the earlier order on Exhibit-68 where the court had held that the main relief was permanent injunction and Section 6(iv)(d) of the Bombay Court Fees Act, 1959 was not applicable. The court discussed the decision in Dilip Khushalchand (Srisrimal) Jain Vs. Hardik Deepakbhai Ramani regarding ad valorem court fees for declaratory relief by a non-party to the sale deed. The excerpt of the judgment ends during the court's analysis without a final operative order, so the ultimate decision and relief granted are not available in the provided text.
Headnote
A) Civil Procedure - Review - Section 114, Code of Civil Procedure, 1908 - Successor judge cannot review predecessor's order on merits; remedy is appeal - Petitioners contended that once Exhibit-306 was allowed, it was not open to the subsequent judge to review the order on merits and the aggrieved party should have challenged it in appellate proceedings; the court considered this contention while examining the review application (Paras 4, 7). B) Civil Procedure - Amendment of Pleadings - Order VI Rule 17, Code of Civil Procedure, 1908 - Adding words in claim clause to reflect existing declaratory prayer does not change nature of suit - The plaint already contained sufficient pleadings and prayer for declaration that sale deed not binding; the trial court allowed amendment noting it would not be hit by proviso to Order VI Rule 17; the High Court observed that merely adding words to the claim clause alongside 'suit for injunction' does not alter the nature of the suit (Paras 8, 12-13). C) Court Fees - Ad Valorem Court Fees - Section 6(iv)(d), Bombay Court Fees Act, 1959 - Declaratory relief by non-party to sale deed may require ad valorem fees though earlier order held main relief as injunction - Defendant had filed Exhibit-68 seeking rejection of suit for insufficient court fees on the declaratory prayer; the court dismissed it holding the main relief was permanent injunction and Section 6(iv)(d) not applicable; the High Court referred to Dilip Khushalchand case on ad valorem fees for declaratory relief by a non-party (Paras 9-10, 13). D) Civil Procedure - Amendment After Commencement of Trial - Proviso to Order VI Rule 17 CPC - Due diligence must be shown - Respondent argued that amendment filed after 18 years without due diligence was barred; the trial court allowed amendment because it did not change nature of suit, but the High Court considered the proviso while examining the review (Paras 5-6, 12).
Issue of Consideration
Whether the amendment application at Exhibit-306 could have been allowed by the civil court; whether, even if allowed erroneously, the civil court could review the order allowing amendment.
Law Points
- Amendment to plaint after commencement of trial requires due diligence under proviso to Order VI Rule 17 CPC
- mere addition of words in claim clause reflecting existing prayer does not change nature of suit
- review under Section 114 CPC cannot be used to re-appreciate merits of an order passed by predecessor
- ad valorem court fees under Section 6(iv)(d) of Bombay Court Fees Act
- 1959 may apply to declaratory relief by non-party to sale deed
