[O VI R 17 CPC] Merely Because Proposed Amendments Relate To Same Property, Doesn't Imply That Party Can Change Nature Of Suit: Bombay High Court

Justice Sandeep V. Marne of the Aurangabad bench set aside a trial court order which allowed amendment to prayers in a property dispute despite observing that the plaintiffs were bringing a new case through the amendment.

"Despite arriving at a finding that plaintiffs were introducing an altogether new case by amending the plaint, the trial Court has still proceeded to allow the application for amendment on the ground that since the amendment is also in respect of the same property, the plaintiffs are at liberty to seek a prayer as to how they are entitled to the suit property. This reasoning in my view is completely erroenous", the court stated in its judgment.

The court observed that the amendment changed the nature of the suit completely and there were no pleadings in the suit to substantiate the new prayers.

The original plaintiffs in the suit are real brothers. It is their case that while obtaining the lease in respect of the suit property, their father added their minor brother's name in the lease agreement out of pure love and affection. After their father passed away, series of litigation took place and the suit property was sold to the third brother alone. Therefore, the plaintiffs filed a suit seeking one third share each of the suit property. They also sought declaration that the original sale deed was illegal.

Before the commencement of the trial, they sought amendment of their plaint under Order-VI, Rule-17 of the CPC to change the prayers in the suit. They sought decree of pre-emption for execution of sale-deed in favour of plaintiffs. The trial court allowed the amendment.

The petitioner in the present petition is a defendant in the suit. He approached the court high court in a writ petition challenging the trial court's order.

Advocate S. S. Gangakhedkar for the petitioner submitted that the amendment completely changes the nature of the suit and the original nature of the suit is not retained.

Senior Counsel Rajendra Deshmukh for the original plaintiffs submitted that the real objective of the plaintiffs in filing the suit is to claim the right, title, and interest in the suit property. The original prayers were erroneous; hence they have replaced them. The basic nature of claiming share in the suit property remains the same and mere change in the relief sought would not amount to changing the nature of the suit.

The court noted that if the sale-deeds are declared null and void, the title in respect of the suit properties would revert to original defendant nos. 5 to 12. Even after succeeding in the suit, plaintiffs would not have been able to claim any right in the suit properties. The plaintiffs possibly sought to amend the prayers for this reason, the court observed.

The court compared the prayers in the original suit as well and the amended suit and said that the amendment is so drastic that it is difficult to compare the amended plaint with the original one.

The court relied on Supreme Court judgement in Life Insurance Corporation of India v. Sanjeev Builders Private Ltd & Anr and noted that there was a complete absence of pleadings in the suit regarding plaintiffs' right of pre-emption. "…therefore it cannot be stated by any stretch of imagination that the amended prayer is premised on the pleadings which already existed in the plaint", the court stated.

The court said that the trial court should have rejected the amendment application as it completely overhauls the plaint.

Though specific objection was raised by the petitioner before the trial court, it did not record any finding on that aspect. However, it did observe that the plaintiffs are coming with a new case in respect to the right to pre-emption.

Despite this finding, the trial court allowed the amendment stating that since the amendment is in respect of the same property, the plaintiffs can seek the prayer as to how they are entitled to the suit property.

The court said that this reason is erroneous and the trial court completely lost sight of the fact that the amendment would change the nature of the suit entirely.

Case no. – Writ Petition No. 6971 of 2022

Case title – Damodhardas Govindprasad Sangi v. Fatehsinh s/o. Kalyanji Thakkar and Ors.

Citation: 2022 LiveLaw (Bom) 492