HASINABI vs MOHMAD SHARIF WP 1608/21 07/03/24

[ JUSTICE B.P. DESHPANDE, J.] [ BOMBAY HIGH COURT]

Amendment of the written statement – Proposed amendment is only to clarify the contents of the gift deed – All these details were known to the defendant, however, the fact remains that she being illiterate and pardanashin lady, was unable to understand the intricacies of the pleadings and the requirement thereof – Application for amendment needs to be bona fide filed and that there should not be any mala fide intention – Proposed amendment would not cause any prejudice to the plaintiff which cannot be compensated adequately in terms of money – Admittedly, the appeal is pending and therefore, it is clear that the defendant is challenging the findings of the Trial Court which referred to absence of pleadings of the gift deed – Petition allowed.

Relevant Paras

25. Thirdly, the proposed amendment would not cause any prejudice to the plaintiff which cannot be compensated adequately in terms of money. Admittedly, the appeal is pending and therefore, it is clear that the defendant is challenging the findings of the Trial Court which referred to absence of pleadings of the gift deed. At the most, by imposing some costs, the plaintiff could be compensated while allowing the amendment application.
26. As against this, by refusing such amendment, it would in fact lead to injustice or to multiple litigation for the simple reason that the plaintiff though referred in the plaint about the gift deed, alleged that it was a false and fabricated document, without challenging it in the suit. Thus, on one hand, the plaintiff asked for declaration of the entries in the Revenue Records as null and void, conveniently avoid to challenge the gift deed as null and void. Thus, the gift deed remains without any declaration which could lead to multiplicity of litigation.

27. The fact remains that the proposed amendment is not changing the nature and the character of the defendant and thus, this aspect is also in favour of the defendant. Finally, the proposed amendment cannot be considered as barred by limitation as the defendant is not seeking any relief by incorporating such defence which is only by way of clarification to her earlier pleadings. It is no doubt true that such amendment has been filed at the appellate stage and therefore, if considered necessary, could be allowed by imposing some costs.
28. In Chakreshwari (supra), the Hon’ble Apex Court in para-16 observed that in appropriate cases the parties are permitted to amend their pleadings at any stage not only during the pendency of trial but also at the first and second appellate stage with leave of Court provided the amendment proposed is bona fide, relevant and necessary for deciding the rights of parties involved in the lis. Thus, the observations are applicable to the present matter.
29. In the case of Shivshankara (supra), the Hon’ble Apex Court has observed in para-14 that it is settled that while dealing with the prayers for amendment of the pleadings, the Court should not apply hyper technical approach, but at the same time, the Court must keep in mind that such amendment cannot be granted on a mere request specifically at the appellate stage and when the judgment and decree passed by the Court is in appeal. Only in exceptional circumstances and when the amendment is necessary to adjudicate the dispute effectively, could be allowed in rare circumstances.

30. The matter in hand would go to show that the petitioner/ defendant being illiterate and pardanashin lady was in fact unable to understand the pleadings in the written statement and therefore, in order to do justice effectively, the proposed amendment which is in the nature of clarification, ought to have been considered by the learned First Appellate Court. However, while taking hyper technical aspect and without considering the status of the defendant, such amendment was rejected.

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