Case Note & Summary
The petitioner, Shankar Masu Dokare, was the original plaintiff in Special Civil Suit No.110 of 2005, seeking a declaration of ownership and cancellation of a sale deed executed by his daughter (defendant No.2) in favor of defendant No.4. The defendants filed counter claims for partition. The trial court decreed the suit in favor of the plaintiff and dismissed the counter claims. Aggrieved, the defendants (respondents herein) filed First Appeal No.2155 of 2007 in the Bombay High Court. During the pendency of the appeal, they filed an application (Exhibit 15) to amend the memorandum of appeal to add specific grounds challenging the dismissal of their counter claims. The learned Ad hoc District Judge-2, Solapur, allowed the amendment. The petitioner challenged this order by way of writ petition. The High Court held that the amendment did not introduce a new cause of action and was permissible under Order VI Rule 17 CPC, as the trial in the appeal had not yet commenced. The court noted that the grounds challenging the dismissal of counter claims were already implicit in the original appeal, and the amendment merely clarified them. The court dismissed the writ petition, upholding the order allowing the amendment.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Pre-trial Amendment - The court considered whether an amendment to the memorandum of appeal seeking to add grounds challenging the dismissal of counter claims was permissible. The court held that since the trial was yet to commence in the appeal, the amendment did not introduce a new cause of action and was necessary for the just adjudication of the case. The court allowed the amendment, observing that the grounds were already implicit in the original appeal. (Paras 1-11)
B) Civil Procedure - Cause of Action - Amendment - The court examined whether the proposed amendment introduced a new cause of action. It held that the amendment merely elaborated on the existing challenge to the dismissal of counter claims and did not change the nature of the suit or introduce a new case. The court emphasized that the test for allowing amendment is whether it is necessary for determining the real question in controversy. (Paras 7-10)
Issue of Consideration
Whether the amendment sought by the respondents in the appeal, which sought to add grounds challenging the dismissal of their counter claims, was permissible under Order VI Rule 17 of the Code of Civil Procedure, 1908, and whether it introduced a new cause of action.
Final Decision
The High Court dismissed the writ petition and upheld the order dated 23/4/2013 passed by the learned Ad hoc District Judge-2, Solapur, allowing the amendment application (Exhibit 15) in Civil Appeal No.325 of 2012.
Law Points
- Amendment of pleadings
- Order VI Rule 17 CPC
- Cause of action
- Pre-trial amendment
- Liberal approach
Case Details
2014 LawText (BOM) (12) 43
Writ Petition No.4658 of 2013
Mr. Surel S Shah for the Petitioner, Mr. Amit B Borkar for the Respondents
Shobha Subhash Dokare and Smt. Siddhavabai Arjunappa Umbarje
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Nature of Litigation
Civil writ petition challenging an order allowing amendment of the memorandum of appeal in a property dispute.
Remedy Sought
The petitioner sought to quash the order dated 23/4/2013 passed by the learned Ad hoc District Judge-2, Solapur, allowing the amendment application (Exhibit 15) in Civil Appeal No.325 of 2012.
Filing Reason
The petitioner contended that the amendment introduced a new cause of action and was not permissible under Order VI Rule 17 CPC.
Previous Decisions
The trial court decreed Special Civil Suit No.110 of 2005 in favor of the plaintiff (petitioner) and dismissed the counter claims of the defendants (respondents). The respondents filed First Appeal No.2155 of 2007 challenging the decree. During the appeal, they sought to amend the memorandum of appeal to add grounds regarding the dismissal of their counter claims. The learned Ad hoc District Judge-2, Solapur, allowed the amendment vide order dated 23/4/2013.
Issues
Whether the amendment sought by the respondents in the appeal was permissible under Order VI Rule 17 CPC?
Whether the amendment introduced a new cause of action?
Submissions/Arguments
The petitioner argued that the amendment sought to introduce a new cause of action and was not permissible as it would change the nature of the appeal.
The respondents argued that the amendment was necessary for the just adjudication of the case and did not introduce a new cause of action, as the grounds were already implicit in the original appeal.
Ratio Decidendi
The amendment of pleadings under Order VI Rule 17 CPC is permissible at any stage of the proceedings if it is necessary for the just adjudication of the case and does not introduce a new cause of action. Since the trial in the appeal had not yet commenced, the amendment was allowed. The grounds challenging the dismissal of counter claims were already implicit in the original appeal, and the amendment merely clarified them.
Judgment Excerpts
The writ jurisdiction of this court is invoked against the order dated 23/4/2013 passed by the learned Ad hoc District Judge2 Solapur by which order the Application (Exhibit 15) for amendment of the Appeal being Civil Appeal No.325 of 2012 came to be allowed and resultantly, the Respondents herein were held entitled to amend the Appeal in terms of the amendment sought vide the said Application (Exhibit 15).
Shorn of unnecessary details, a few facts can be stated thus : The Petitioner herein is the original Plaintiff who had filed the suit in question being Special Civil Suit No.110 of 2005 for a declaration that the Petitioner is the owner of the entire suit property, and for cancellation of the sale deed executed by the Defendant No.2 i.e. the Respondent No.1 herein who is his daughter in favour of the Defendant No.4. i.e. the Respondent No.2 herein.
Procedural History
The petitioner filed Special Civil Suit No.110 of 2005 which was decreed on 31/3/2007. The respondents filed First Appeal No.2155 of 2007. During the appeal, they filed an amendment application (Exhibit 15) which was allowed by the learned Ad hoc District Judge-2, Solapur on 23/4/2013. The petitioner challenged this order by filing Writ Petition No.4658 of 2013 in the Bombay High Court, which was dismissed on 10/12/2014.
Acts & Sections
- Code of Civil Procedure, 1908: Order VI Rule 17
