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Vasudev Devnath Pandya Vs. Karsan Kamshi Bharwad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 926 of 1960 with Civil Appeal No. 1139 of 1961
Judge
Reported inAIR1963Guj153; (1963)0GLR172
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 21, Rules 98, 99 and 103
AppellantVasudev Devnath Pandya
RespondentKarsan Kamshi Bharwad
Appellant Advocate I.M. Nanavaty,; B.K. Gandhi and; H.D. Pathak, Advs.
Respondent Advocate M.H. Chhatrapati, Adv.
Cases ReferredPirgonda Hongonda v. Kalgonda
Excerpt:
civil - possession - order 6 rule 17 and order 21 rules 97, 98, 99, 101 and 103 of code of civil procedure, 1908 - plaintiff prayed to recover possession of suit land from defendant no. 1 - application made before executing court to remove obstruction caused by defendant no. 2 in recovering possession - application rejected as not made under order 21 rule 97 - suit field before civil judge for removal of obstruction - civil judge concluded that suit maintainable - defendant no. 2 filed appeal before assistant judge - assistant judge concluded that no suit could be filed by plaintiff under order 21 rule 103 - plaintiff filed second appeal praying for leave to amend plaint by including prayer for recovery of possession of suit land from defendants - suit under order 21 rule 103 lie only if.....p.n. bhagwati, j.1. this litigation has had a checkered career and after passing through various stages it has now coma in second appeal before this court. the plaintiff ns a result of a protracted litigation obtained a decree for possession against defendant no. i in civil suit no. 153 of 1946. the plaintiff thereafter filed darkhast no. 77 of 1959 to recover possession of the suit land from defendant no. i a warrant for possession was issued but at the time of the execution of the warrant, defendant no. 2 caused obstruction stating that he was in possession of the suit land in his own right and the warrant for possession could not, therefore, be executed. the plaintiff then made an application to the executing court to remove the obstruction caused by defendant no. 2. the application,.....
Judgment:

P.N. Bhagwati, J.

1. This litigation has had a checkered career and after passing through various stages it has now coma in Second Appeal before this Court. The plaintiff ns a result of a protracted litigation obtained a decree for possession against defendant No. I in Civil Suit No. 153 of 1946. The plaintiff thereafter filed Darkhast No. 77 of 1959 to recover possession of the suit land from defendant No. I A warrant for possession was issued but at the time of the execution of the warrant, defendant No. 2 caused obstruction stating that he was in possession of the suit land in his own right and the warrant for possession could not, therefore, be executed. The plaintiff then made an application to the executing Court to remove the obstruction caused by defendant No. 2. The application, it seems, was made in the Darkhast proceedings and was not numbered as a separate application tinder Order 21, Rule 97 of the Code of Civil Procedure. The executing Court took the view that the application was not an application under Order 21, Rule 97 of the Code of Civil Procedure but was an application in the Darkhast proceedings and that such an application could not lie since defendant No. 2 claimed to be in possession of the suit land in his own right. The plaintiff, realising this difficulty, requested the executing Court to treat the application as an application under Order 21, Rule 97 of the Code of Civil Procedure but the executing Court declined to do so. The executing Court accordingly rejected the application on the ground that the application was not maintainable. The plaintiff being aggrieved by the order passed by the executing Court rejecting the application filed an appeal against the same but the appeal was summarily dismissed. The plaintiff thereafter filed the present suit in the Court of the Civil Judge, Junior Division, Dholka, for removal of the obstruction caused by defendant No. 2 in the execution of the warrant for possession in Darkhast No. 77 of 1950 and for a permanent injunction to restrain the defendants from causing obstruction to the plaintiff in obtaining possession of the suit land in the execution proceedings. The suit as its very frame suggests was filed under Order 21, Rule 103 of the Code of Civil Procedure. The defendants resisted the suit on various grounds, one of the grounds being that the suit as framed was not maintainable. The learned trial Judge, however, took the view that the suit was maintainable and since in the opinion of the learned trial Judge the other defences raised on behalf of the defendants were untenable, the learned trial Judge passed a decree in favour of the plaintiff directing that the obstruction occasioned by defendant No. 2 in the execution of the warrant for possession in Darkhast No. 77 of 1950 be removed and that defendant No. 2 be perpetually restrained from interfering with and causing obstruction to the plaintiff in obtaining possession of the suit land by executing the warrant for possession. Defendant No. 2 being aggrieved by this decree passed against him by the learned trial Judge, filed an appeal against the same and the appeal was heard by the Second Extra Assistant Judge, Ahmedabad. The learned Assistant Judge came to the conclusion that the order passed by the executing Court rejecting the application of the plaintiff to remove the obstruction caused by defendant No. 2 was not an order made under Order 21, Rule 99 of the Code of Civil Procedure and that no suit could, therefore, he filed by the plaintiff against defendant No. 2 under Order 21, Rule 103 of the Code of Civil Procedure. The learned Assistant Judge observed that the application made by the plaintiff was dismissed by the executing Court without any investigation on the ground that it was not an application under Order 21, Rule 97 of the Code of Civil Procedure and that there was, therefore, no order made by the executing court Court under Order 21 Rule 99 of the Code of Civil Procedure which could form the foundation of a suit under Order 21 Rule 103 of the Code of Civil Procedure. The learned Assistant Judge accordingly held that the suit as framed was not maintainable and should have been dismissed by the learned trial Judge. The learned Assistant Judge consequently allowed the appeal and dismissed the suit with' costs: The plaintiff thereupon filed the present Second Appeal in this Court.

2. Since the appeal was disposed of by the learned Assistant Judge on only one ground namely that the suit as framed was not maintainable, the arguments before me also centred round the only question whether the suit was maintainable under Order 21, Rule 103 of the Code of Civil Procedure. It was not disputed before me -- and it could not be so disputed --that the suit as framed was a suit under Order 21, Rule 103 of the Code of Civil Procedure. But the argument was that such a suit was maintainable having regard to the facts and circumstances of the present case. Mr. I. M. Nanavaty, learned advocate appearing on behalf of plain-tiff conceded that a suit under Order 21, Rule 103 of the Code of Civil Procedure could be filed by a party other than the judgment-debtor only when an order was made against such party under Rule 93, Rule 99 or Rule 101 of Order 2r of the Code of Civil Procedure, but his contention was that in the present case there was an order against the plaintiff under Order 21, Rule 99 of the Code of Civil Procedure so as to attract the applicability of the provisions of Order 21, Rule 103 of the Code of Civil Procedure. Mr. I.M. Nanavaty contended that the application made by the plaintiff before the executing Court was an application for removal of the obstruction caused by defendant No. 2 in the execution of the warrant for possession and since such an application could be made only under Order 21, Rule 97 of the Code of Civil Procedure, the application was in effect and substance an application under Order 21, Rule 97 of the Cod? of Civil Procedure and that the order passed by the executing Court rejecting the application must, therefore, be treated as an order under Order 21, Rule 99 of the Code of Civil Procedure. If an application under Order 21, Rule 97 of the Cock of Civil Procedure was rejected by the executing Court without investigation, argued Mr. L.M. Nanavaty, the order rejecting the application could be treated as an order made under Order 2T, Rule 99 of the Code of Civil Procedure and that it: was not necessary that there should be an investigation before an order could lie made under Order 21, Rule 99 of the Code of Civil Procedure. Now it is no doubt true that if the order made by the executing Court on the application of the plaintiff, could be treated as an order under Order 21, Rule 99 of the Code of Civil Procedure, the present suit filed by the plaintiff against the defendants would certainly be maintainable under Order 21, Rule 103 of the Code of Civil Procedure. But for reasons which I shall presently state, I am of the opinion that the order passed by the executing; Court on the application) of the plaintiff could not be said to be an order made under Order 21, Rule 99 of the Code of Civil Procedure so as to afford a foundation for the institution of a suit under Order 21, Rule 103 of the Code of Civil Procedure.

3. The fasciculus of Rules 97 to 103 of Order 21 of the Code of Civil Procedure occurs under the heading 'Resistance to Delivery of Possession to Decree-holder or Purchaser'. Rule 97 provides that' where the holder of a decree for possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. This was the rule under which the plaintiff should have made the application to the executing Court complaining of obstruction on the part qf defendant No. 2 in the execution of the warrant for possession. The came rule provides that when such an application is made to the Court, the Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same. . Rules 98 and 99 then provide for the different orders to be made on the application. Rule 98 prescribes that where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, it shall direct that the applicant be put into possession of the property; Where on the other hand the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, Rule 99 prescribes that the Court shall in such an event make an order dismissing the application. Rules 100 and for are not material for the purpose of the present appeal. They deal with a case where a person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession of such property or, where such property has been sold' in execution of a decree, by the purchaser thereof. Rule 102 is also not relevant for the purpose of the present discussion and J need not, therefore, concern myself with the; same. Then comes Rule 103 which is the rule round which the entire controversy between the parties has centered. That rule provides that any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule for may institute a suit to establish the right which ho claims to the present possession of the property; but, subject to the result of such suit (ii any), the order shall be conclusive. The scheme of these Rules, therefore, appears to be that where the holder of a decree for possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession, he may make an application to the Court complaining of such resistance or obstruction, and on such an application being made, the Court would investigate the matter. If after investigation the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, the Court would direct the applicant to be put into possession of the property. If on the other hand as a result of such investigation the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person either than the judgment-debtor, the Court would make an order dismissing the application. The order made by the executing Court in this summary proceeding, whether under Rule 98 or under Rule 99 would be conclusive as between the parties unless of course a suit is instituted by to party against whom the order is made to establish the right which he claims to the present possession of the property, in which event the result of the suit would supersede the order made by the executing Court. It is clear from the scheme as also from the provisions of the various rules discussed above that the order made by the executing Court whether under Rule 98 or under Rule 99 is an order made after investigation and neither Rule 98 nor Rule 99 contemplates an order made otherwise than after investigation. Rule 98 speaks of an order to be made by the Court where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation and likewise Rule 99 speaks of an order to be made by the Court where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, I do not see how in the face of this clear and specific language used by the Legislature I can be asked to hold that an order made by the executing Court dismissing an application on the ground that it is not an application under Order 21, Rule 98 of the Code of Civil Procedure can be said to be an order under Order 21, Rule 99 of the Code of Civil Procedure.

4. Mr. I.M. Nanavaty, in support of his contention that a suit under Order 21. Rule 103 of the Code of Civil Procedure can lie even though an application for removal of resistance or obstruction is rejected without investigation, relied on a decision of Mudholkar, J., as he then was, in Madan Mohan v. Hari Anandilal : AIR1959Bom269 . The facts in that case were rather peculiar and it ia necessary to set them out in order to appreciate the true ratio of the decision in that case. The plaintiffs in that case applied under Order 21, Rule 95 of the Code of Civil Procedure for delivery of possession of certain property. The defendant on 17th October, 1946, resisted the execution of the warrant for possession. The plaintiffs did not make an application under Order 21, Rule 97 of the Code of Civil Procedure, but applied for and obtained a fresh warrant for possession. The plaintiffs were again resisted from obtaining possession on 10th April, 1947, and thereafter in 10th April, 1947 they made an application under Order 21, Rule 97 of the Code of Civil Procedure for removal of the obstruction. This application was dismissed on two grounds one of which was that the application, not having been made within thirty days of the date of the initial obstruction by the defendant, was barred by the law of limitation. The plaintiffs filed an anneal against the order dismissing the application but the appeal was also dismissed. During the pendency of the appeal the plaintiffs filed suit on 14th December 1948 under Order 21, Rule 103 of the Code of Civil Procedure for a declaration that the defendant was not entitled to resist delivery of possession. Two contentions, were put forward in answer to the suit and they may be set out in the words of the learned Judge himself, since it is rather necessary in order to understand the true import of the decision, to bear in mind what were the contentions in reference to which the learned Judge made the observations relied upon by Mr. I.M. Nanavaty :

'What is contended before me on behalf of the respondent by Shri Tare is that a suit of this kind is barred both by limitation as well at by virtue of the provisions of Section 47 of the Code of Civil Procedure. According to him, the proper course for the appellants would have been to make an application under 'Order XXI, Rule 07, within 30 days of the initial resistance to possession made by the respondent, and that they having failed to do so, were not entitled to bring a suit more than one year after the first obstruction. As regards the second ground hit contention is that by reason of the execution purchase the respondent stepped into the shoes of Moreshwar and Madhao and thus became a representative of those two persons and that consequently he could be regarded as a party to the litigation. For this reason he contends that the only remedy which the appellants had was to-proceed against him in execution and not by way of a separate suit'.

The learned Judge disposed of the second point first and held that it was not open to the defendant to contend that he was in fact a representative of the judgment-debtors. The learned Judge thereafter proceeded to examine the first point which involved the plea of limitation. The argument before the learned Judge was that the duty of the plaintiffs was to prefer an application under Order 21, Rule 97 of the Code of Civil Procedure within thirty days of the initial obstruction, and that since they did not avail themselves of that remedy within the time allowed by the Law of Limitation it was not open to them to file a suit under Order 21. Rule 103 more than one year after the date of such obstruction. The emphasis in the argument was not on the point that no suit under Order 21. Rule 103 of the Code of Civil Procedure could be maintained by the plaintiffs against the defendant, but the emphasis was on the point whether such a suit could be maintained more than one year after the date of the initial obstruction. The main plank of the defence was not that the suit was not maintainable under Order 2T, Rule 103 of the Code to Civil Procedure but was that the suit was not fled within time and it is in reference to this contention based on the plea of limitation that the learned Judge made the following observation!' which are strongly relied upon by Mr. I.M. Nanavaty :

'All that this rule contemplates is that an order should have been made under Rule 08. Rule 99 or Rule 101. It does not say that be application invoking the powers of the Court must be made within limitation. Again what this rule contemplates is not merely correction of an error in an order passed under one of these rules but establishment of the decree-holder's right to the possession of property which he had sought but could not obtain in execution...' Now it is no doubt true that these observations at first blush appear to support the present contention of Mr. I.M. Nanavaty. But these observations, it must not be forgotten, were made by the learned Judge in the context of a plea of limitation and not in the context of a plea of maintainability of the suit under Order 21, Rule 103 of the Code of Civil Procedure. No contention was raised before the learned Judge that the order passed by the executing Court rejecting the application of the plaintiffs under Order 21. Rule 97 of the Code of Civil Procedure as time barred could not be said to be an order under Order 21, Rule 99 of the Code of Civil Procedure and that the suit filed by the plaintiffs against the defendant was, therefore, not maintainable under Order 21, Rule 103 of the Code of Civil Procedure. If such a contention had been raised be-' fore the learned Judge and the learned Judge had then made these observations, they would have carried great weight and it would have been impossible for me to resist their binding authority. But in the context in which they occur, these observations do not, in my opinion, lay down any proposition of law in regard to the maintainability of the suit under Order 21, Rule 103 of the Code of Civil Procedure and no assistance can therefore be derived by Mr. I. M. Nanavaty from these observations in support of his contention.

5. But apart from this decision of Mudholkar J.,- as he then was, there are at least two decisions of other High Courts which have taken the view that a suit under Order 21, Rule 103 of the Code of Civil Procedure can be maintained only when there is an order passed ,by the executing Court under Rule 98, Rule 99 or Rule 101 of Order 21 of the Code of Civil Procedure after investigation. .The first decision to which reference must, be made is the decision ' reported in Dwarika Sahu v. 'Mt.. Anandi : AIR1950Pat25 . In that case a Division Bench of the Patna High Court consisting of Reuben and Narayan JJ., held that since the order dismissing the application of the plaintiff under Order 21, Rule 97 of the Code of Civil Procedure was not one passed after investigation, the suit filed by the plaintiff against -the defendant was not governed by Article IIA of the Limitation Act which applied to a suit under Order 21, Rule 103 of the Code of Civil Procedure. The application of the plaintiff in that case was dismissed for default of appearance and the learned Judges of the Patna High Court held that in such a case, no suit could he maintained under Order 21, Rule 103 of the Code of Civil Procedure and that the suit filed by the plaintiff against the defendant for declaration of title and recovery of possession was, therefore, not a suit under Order 21, Rule 103 of the Code of Civil Procedure and was accordingly within time even though it was filed more than one year after the date of the dismissal of the plaintiff's application. The same view was also taken' by the Calcutta High Court in Sarat Chandra Bisu v. Tarini Prosad Pal Chowdry, 34 Cal 491;' That was a suit governed by the Code of Civil Procedure, 1882, but the relevant provisions were the same as in the present Code of Civil Procedure. In that case an application under Section 335 for removal of obstruction was dismissed for default on the plaintiff applying to withdraw the application for want of evidence, the opposite party being present. The plaintiff thereafter filed a suit for recovery of possession of the property from the defendants. The defendants pleaded limitation under Article II of the Limitation Act. A Division Bench of the Calcutta High Court consisting of Sir Francis Maclean and Justice Geidt held that there was no inquiry within the meaning of Section 335 and that consequently the order made was not conclusive, and the suit was not barred by the special limitation of one year, The learned Judges observed that it was a condition precedent to passing of an order under Section 335 so as to make it conclusive unless a suit were brought within one year, that the Court should inquire into matters of resistance, etc. Section 335 corresponded' to Rules 99, 101 and 103 of Order 21. This decision must, therefore, clearly lead to the conclusion that a suit under Order 21, Rule 103 of the Code of Civil Procedure can lie only if there is an order made by the executing Court after inquiry under Rule 98 or Rule 99 or Rule 101 of Order 21 of the Code of Civil Procedure. In the present case there was admittedly no inquiry and the application of the plaintiff was dismissed on the ground that the application was an application in the Darkhast proceedings and was not an application under Order 31, Rule 97 of the Code of Civil Procedure. The order dismissing the application Could not, accordingly, be said to be an order under Order at, Rule 99 of the Code of Civil Procedure and the suit, filed as it was under Order 21, Rule 103 of the Code of Civil Procedure was not maintainable, The learned Assistant Judge was, therefore, right in taking the view that the suit as framed was not maintainable and was, therefore, liable to be dismissed.

6. In this view of the matter I would have proceeded to dismiss the appeal and confirm the decree dismissing the suit. But Mr. I.M. Nanavaty made an application before me for leave to amend the plaint by including a prayer for recovery of possession of the suit land from the defendants. Mr. I.M. Nanavaty contended that all the allegations founding his claim for recovery of possession were already in the plaint' and that the plaintiff should not suffer merely because) instead of asking for one form of relief, he asked for another form of relief in the plaint as originally framed. The application was strenuously opposed by Mr. M.H. Chhatrapati, learned advocate appearing on behalf of defendant No. 2. The contention of Mr. M.H. Chhatrapati was that the application should not be allowed at such a late stage of the proceedings, particularly when a vested right had accrued to defendant No. 2 to plead the bar of limitation. Mr. M.H. Chhatrapati also contended that the effect of allowing the amendment would be to convert the suit into a suit on title and that, in the submission of Mr. M.H. Chhatrapati was something which the Court could not permit to be done. Mr. M.H. Chhatrapati also pointed out that the plaintiff had mortgaged the suit land in favour of a creditor and the creditor had obtained a final decree for sale of the suit land and as a result of such final decree, the plaintiff's equity of redemption was extinguished. If the plaintiff's equity of redemption wag extinguished, argued Mr. M.H. Chtiatrapati, the plaintiff could not maintain a suit for recovery of possession on the strength of title and it was, therefore, futile to allow an amendment for converting the suit into one for recovery of possession on the basis of title. Mr. M.H. Chhatrapati also contended that in the sale which took place under the final decree for safe, defendant No. 2 had become the purchaser of the suit land and that the plaintiff was, therefore, in any event not entitled to recover possession of the suit land from defendant No. 2 and the amendment sought for was, therefore, futile, Mr. I.M. Nanavaty rejoined by saying that the final decree for sale was not on record and that in any event even after the final decree for sale, the plaintiff was entitled to redeem the suit land so far as the sale of the suit land was not confirmed and that merely because the final decree for sale was passed, it did not follow that the plaintiff had no title to maintain the suit. Mr. I.M. Nanavaty also pointed out that the plaintiff had applied for setting aside the sale in favour of defendant No. 2 and that a Revision Application in that proceeding was pending in this Court and that if the plaintiff succeeded in that Revision Application, the sale in favour of defendant No. 2 would be set aside, in which event the title of the plaintiff to recover possession of the suit land from defendant No. 2 would remain intact and unaffected. Mr. I. M. Nanavaty accordingly contended that there was no valid reason why leave to amend the plaint should be refused to the plaintiff.

7. Now the principles governing the amendment of pleadings are well-settled and have been stated with great clarity by Batchelor J., in Kishandas v. Rachappa, n Bom LR 1042 :

'......all amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Upon the record before us there can be no doubt that this second condition is satisfied here, nor was this point challenged for the appellants. It remains to consider whether the allowance of the amendment worked injustice to the defendants. Upon this question Weldon v. Neal (1887) 19 Q. B. D. 394, was cited for the appellants. Reference may also be made to Tildesley v. Harpar, (1878) 10 Ch. D. 393, Clarapede and Co. v. Commercial Union Association, (1883) 32 W. Rule 261 and Steward v. North Metropolitan Tramways Co. (1886) 16 Q. B. D. 556; but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendments should be refused only, where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused: to-allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: Can the amendment be allowed without injustice to the other side, or can it not?'

The Supreme Court in Pirgonda Hongonda v. Kalgonda, : [1957]1SCR595 approved the aforesaid statement of the principles by Batchelor J., and said that in their opinion the correct principles were enunciated by Batchelor J., in the aforesaid statement. The test which must, therefore, be applied for the-purpose of determining whether the amendment should be allowed or not is whether the amendment can be allowed without injustice to the other side or whether it cannot be so allowed. Now in the present case all the allegations which are necessary for sustaining a claim for recovery of possession of the suit land are already in the plaint. What is lacking is only the allegation that the plaintiff is entitled to recover possession of the suit land from defendant No. 2. Defendant No. 2 knew at the date of the suit that what the plaintiff in effect and substance sought by filing the suit was recovery of possession of the suit land. The plaintiff did not claim in express terms the relief of recovery of possession of the suit land presumably because, he was advised that he could maintain a suit under Older 21, Rule 103 of the Code of Civil Procedure. The object in a suit under Order 21, Rule 103 of the Code of Civil Procedure is the same as the object in a suit for recovery of possession based on title. In the first case the plaintiff says that he is entitled to recover possession of the property in execution of the decree obtained by him but that he is obstructed in doing so by the defendant who is-not entitled so to obstruct him. In the second case also the plaintiff says that he is entitled to recover possession of the property but the defendant is wrongfully refusing to hand over possession of the property to him. The form of the suit in the two cases is different but the purpose of the suit is one and the same, namely, to recover possession of the property. Defendant No, 2, therefore, very well knew that the plaintiff claimed to be entitled to the possession of the suit land and was seeking to recover such-possession from defendant No. 2. If in doing so the plaintiff adopted a wrong frame of suit, I do-not see what injustice can possibly be caused to-defendant No. 2, if the plaintiff is allowed to change the frame of the suit into a correct one. The amendment, in my opinion, would not cause any injustice to defendant No. 2. Of course it was not disputed that the amendment was necessary for the purpose of determining the real questions in controversy between the parties. The-two conditions laid down by Batchelor, J.. in II Bom LR 1042 (supra) and approved by the Supreme Court in 59 Bom LR 401: ( (S) AIR 957 SC 363) (supra) are thus satisfied in the present case and the amendment must, therefore, be allowed in accordance with the well-settled principles to which. I have referred in the earlier part of the judgment. There is no force in the contention of Mr. M.H. Chhatrapati that the amendment should not be allowed because by reason of the final decree for sate, the equity of redemption of the plaintiff has been extinguished and the plaintiff has, therefore, no title to maintain the suit for recovery of possession of the suit land from defendant No. 2. The final decree for sale is not on record and even if the final decree for sale were on record, I am not at all sure whether in spite of the final decree for sale the plaintiff cannot redeem the suit land at any time up to the date of confirmation of the sale. It is no doubt true, if what is stated in the affidavit of defendant No. 2 is correct, that defendant No. 2 has become the purchaser of the suit land at the auction sale held in execution of the final decree for sale and that the sale is confirmed in favour of defendant No. 2, but Revision Application No. 148 of 1962 is pending in this Court in which the order refusing to set aside the sale in favour of defendant No. 2 has been challenged. If the Revision Application succeeds, the sale in favour of defendant No. 2 would be set aside and in that event the plaintiff may still have left in him the right to redeem the suit land in spite of the final decree for sale. It cannot, therefore, be said to-day with any amount of certainty that the plaintiff has no title to recover possession of the suit land from defendant No. 3. If according to defendant No. 2 the plaintiff has no right to recover possession of the suit land from defendant No. 2, defendant No. z will be free to raise such contention in answer to the suit and the Court will have to adjudicate on such contention. But that cannot form any ground for resisting the plaintiff's application for leave to amend the plaint.

8. The result, therefore, is that I set asidethe decree of dismissal passed by the learnedAssistant Judge and remand the suit to the trialCourt with a direction to dispose of the suit inaccordance with the observations contained inthis judgment. The plaintiff is granted leave toamend the plaint in terms of paragraph 3 of theapplication for amendment. The plaintiff willcarry out the amendment within fifteen days afterthe disposal of Revision Application No. 148 of1962 which is pending in this Court. DefendantNo. a will be at liberty to file a supplementalwritten statement in answer to the amendedplaint within four weeks after the amendment iscarried out by the plaintiff. The trial Court willthereafter proceed to dispose of the suit as expeditiously as possible. Since by the amendmentthe plaintiff has tried to resuscitate a suit whichwould otherwise have failed, it is but fair andjust that the plaintiff should pay to defendantNo. 2 all costs up-to-date including costs of thesuit, costs of the first appeal and costs of thepresent Second Appeal as also costs of the application for leave to amend, as a condition precedent to the amendment.


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