SARASWATIBAI MAHADEORAO PAWADE, AGED ABOUT : 80 YEARS, OCCUPATION : AGRICULTURIST Vs. SHRI HARISHCHANDRA MAHADEORAO PAWADE, AGED ABOUT : 55 YEARS, OCCUPATION : CULTIVATOR

JUDGEMENT

(1.) This appeal filed under the provisions of Order 43, Rule 1 (w) of the Code of Civil Procedure, 1908 (for short, the Code) takes exception to the order passed by the Appellate Court exercising review jurisdiction and allowing the review application by order dated 18/02/2015.

(2.) Facts relevant for adjudicating the present appeal are that the respondent No.1 is the original plaintiff, who has filed Regular Civil Suit No.97/2006 for partition and separate possession of joint family property. In said suit, the appellants raised a plea that all the properties of the joint family were not subject matter of the suit and therefore, the suit for partition was not maintainable. The Trial Court by upholding said objection, dismissed the suit on 16/02/2009. The respondents herein, therefore, filed an appeal under Sec. 96 of the Code challenging the said judgment. During the pendency of said appeal, the appellants therein moved an application below Exh.21 seeked to amend the plaint so as to incorporate the joint family properties that had been left out. The Appellate Court on 09/01/2014 rejected the said application. Thereafter, the appellants before the Appellate Court moved an application for review of aforesaid order. Subsequently, the said applicants also moved an application for condonation of delay in filing the review application. Both the applications were opposed by the appellants herein and by the impugned order, the Appellate Court condoned the delay, allowed the review application and thereafter proceeded to allow the application for amendment. Being aggrieved, the said orders have been challenged in this appeal.

(3.) Shri K. B. Zinjarde, learned counsel submitted that the Appellate Court exceeded its jurisdiction while allowing the review application. He submitted that the application for amendment was rejected by the Appellate Court on the ground that the amendment to the plaint was not permissible in view of proviso to Order 6, Rule 17 of the Code. There was no occasion to exercise review jurisdiction and take another view of the matter, especially when there was no error apparent on the face of record. Only on the ground that the appeal was likely to be dismissed if the amendment was not allowed, the review jurisdiction came to be exercised. It was urged that this exercise was beyond the scope of provisions of Order 47, Rule 1 of the Code read with Sec. 114 thereof. In that regard, the learned counsel placed reliance on the decision in the case of the Honourable Supreme Court in Kamlesh Verma Vs. Mayawati and ors. (2013) 8 SCC 320.