High Court of Bombay at Goa Adjudicates Writ Petitions Against Dismissal of Amendment Applications in Civil Suit. Dispute Involves Plea of Fraud in Consent Decree and Applicability of Procedural Bars under the Code of Civil Procedure, 1908.

Civil writ petitions challenging the trial court's order dismissing applications for amendment of written statement in a suit for permanent injunction.

The petitioners sought setting aside of the trial court's order dated 30.10.2015 and allowing the amendment of written statement to incorporate the plea of fraud.

The trial court dismissed the amendment applications finding them barred by Order VI Rule 17 proviso and Order XXIII Rule 3A CPC, and noting that similar pleas were earlier rejected on 05.10.2013.

The trial court rejected an application for framing additional issues on 05.10.2013. The applications for amendment were dismissed on 30.10.2015.

Whether the trial court erred in dismissing the amendment applications under Order VI Rule 17 and Order XXIII Rule 3A CPC? Whether the plea of fraud regarding the consent decree can be introduced at the stage of cross-examination of PW-1?

The petitioners argued that the consent decree in Special Civil Suit No. 10/1975 was obtained by fraud, suppressing the prenuptial agreement and gift deeds, and that fraud must be specifically pleaded as required by Order VIII Rule 2 CPC. It was contended that all necessary ingredients for the plea of fraud were already present in the written statement and the amendment merely elaborated the existing defence. The respondents opposed the amendment on the ground that it was barred by the proviso to Order VI Rule 17 and Order XXIII Rule 3A CPC, and that the defendants had previously attempted to raise the same pleas.

The learned Trial Court by impugned order dated 30.10.2015 has dismissed the said applications, which is subject matter of challenge, in these petitions. (Para 11) This suit is thus baseless and ought to be dismissed, since, as outlined above, the present plaintiff no. 1 and Raghunathrao Deshprabhu suppressed material documents from the Court in the said Special Civil Suit No. 10 of 1975. Among such documents, in the prenuptial agreement dated 7 th May, 1951, they chose separation of property, including of acquired property, and repeated the incommunicability clause from the gift deeds of 1927 and 1929. They, thus fraudulently got the said Court to pass a consent decree which it would not and could not have otherwise passed in law. The said consent decree is thus vitiated by fraud and is a nullity. (Para 9)

Raghunathrao Deshprabhu and Sitadevi entered into a prenuptial agreement on 07.05.1951. In 1975, Devendra Deshprabhu filed Special Civil Suit No. 10/1975 for dissolution of HUF, which ended in a consent decree on 26.02.1976 partitioning the properties. A deed of succession/renunciation was executed on 08.04.1993. In 2006, Sitadevi and others filed Special Civil Suit No. 89/2006/B for permanent injunction based on the consent decree. The defendants filed written statements challenging the decree. On 05.10.2013, the trial court rejected an application for framing additional issues. During trial, PW-1 was under cross-examination when the defendants filed three amendment applications (Exhibit-247) on unspecified dates. The trial court dismissed these applications on 30.10.2015. The writ petitions were filed challenging that order. The High Court heard arguments and reserved judgment on 01.09.2016, pronouncing on 04.10.2016.

• Code of Civil Procedure, 1908: Order VI Rule 17, Order XXIII Rule 3A, Order VIII Rule 2
• Indian Registration Act, 1908: