In the said context, it would also be advantageous to refer to the
Judgment of the Apex Court in the case of Abdul Rehman and Anr. vs.
Mohd. Ruldu and Ors.7, wherein, the Apex Court has defined the
parameters for consideration of an application for amendment of the
Plaint, after the trial has commenced and has laid down the matters to
be considered, of which, one aspect is whether the relief claimed by way
of amendment is time barred. The Apex Court has further held that if
an application is made after the commencement of the trial, in that
event, the Court would have to arrive at a conclusion that inspite of due
diligence, the party could not have raised the matter before the
commencement of trial. In view of the fact that the amendment
application has admittedly been moved after the commencement of the
trial, the mandate of Rule 17 would have to be followed, namely that
the Plaintiffs would have to satisfy the Court that inspite of due
diligence, they could not have moved the amendment earlier. WRIT PETITION NO. 171 OF 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
1) Barkatali Abdul Razzak Kazi
versus
1) Manzoor Abdul Razzak Kazi
CORAM : R. M. SAVANT, J.
DATED : APRIL 11, 2014
At the outset, the learned Counsel appearing for the
Petitioners Shri. Kulkarni, on instructions of the Petitioners, seeks
deletion of the Respondent No. 2, who, according to the Petitioners, is a
formal party, in the context of the present Petition. The Respondent No.
2 is accordingly allowed to be deleted at the risk of the Petitioners.
Rule, with the consent of the learned Counsel appearing for
2)
the parties, made returnable forthwith and heard.
The Writ Jurisdiction of this Court is invoked against the
3)
order dated 26th November, 2013, passed by the learned Civil Judge,
Junior Division, Panvel, by which order, the application for amendment
of the Plaint, filed by the Petitioners/ original Plaintiffs under Order I
Rule 10 of the Civil Procedure Code (hereinafter referred to as “the
CPC”), read with Order VI Rule 17 of the CPC, came to be rejected.
4)
The facts necessary to be cited for adjudication of the above
Petition, in brief, can be stated thus:
The Petitioner No. 1 and the Respondent No. 1 herein are
brothers. The Petitioner Nos. 2 and 3 are the sisters of the Petitioner
No. 1 and the Respondent No. 1. The father of the parties was one
Abdul Razzak Kazi, who died on 11 th July, 1998. One Sonabai was their
grandmother and the properties, which are mentioned in paragraph 2 of
the Plaint, were belonging to her and her sisters. The said properties,
which were lands in Panvel District, were the subject matter of
acquisition for the project of New Bombay. Awards were passed in
respect of the said lands in the name of Sonabai. Proceedings for
enhancement of compensation, by way of Reference under Section 18,
were filed, which proceedings were decided leading to the filing of a
First Appeals in this Court being First Appeal No. 983 of 1988 and First
Appeal No. 919 of 1992 by the said Sonabai. It is pending the said First
Appeals that Sonabai died. The Respondent No. 1 herein filed Civil
Applications in the said First Appeals for bringing himself on record of
the First Appeals on the basis of the Gift Deed executed by Sonabai.
The said applications came to be allowed. The Respondent No. 1
withdrew the amount of compensation. After the Petitioners had
acquired knowledge of the withdrawal of the compensation that they
filed an application for review of the order permitting the Respondent
No. 1 to withdraw the amount. The application of the Petitioners was
based on the Will dated 1st July, 1995 in their favour, allegedly executed
by the said Sonabai. This Court, in view of the competing claim made
by the Petitioners, to the compensation, on the basis of the Will,
observed that it would be open for the Petitioners to assert their right
on the basis of the Will by way of a Suit. This is how the instant Suit
being Special Civil Suit No. 31 of 2005 came to be filed by the
Petitioners. The Respondent No. 1 herein is the original Defendant No.
1 to the Suit.
In the Suit, the Plaintiffs have interalia claimed reliefs by way of
a declaration that the Gift Deed dated 30th September, 1995 in favour of
the Defendant No. 1 be declared as illegal, obtained by fraud and
misrepresentation, direction to the Defendant Nos. 1 and 2 for giving
account of the amount of compensation available for distribution,
amounts paid to the Defendant No. 1, the amounts remaining to be
paid, declaration is also sought that the Plaintiff have 1/12 th share in
the suit properties and a further declaration that the Will dated 1 st July,
1995, executed by the deceased Sonabai, is legal and valid. The
Plaintiffs have also sought permanent injunction. The aforesaid is the
gist of the reliefs sought in the Plaint, however, in the context of the
present Petition, it would be apposite to reproduce prayer clauses ‘c’, ‘d’
and ‘f’ of the Plaint, which read thus:
“c)
That the defendant No. 1 and 2 may be directed to give
account of the amount of compensation available for distribution
of the share of deceased Sonubai, the amounts paid to defendant
No. 1 and amount remaining to be paid and plots of 12 1⁄2 to be
allotted by defendant No. 2 the heirs of deceased Sonubai.
d)
It may be declared that, the plaintiffs have one twelve
share in the properties and/or compensation of the properties left
by deceased Sonubai and defendant No. 1 also is entitled for the
same 1/12th share equal to the each off the plaintiffs.
e)
f)
That the Defendant No. 1 be restrained by a permanent
injunction not to deal with any more in any transaction of any
land and/or not to receive any amount from defendant No. 2 in
lieu of remaining compensation amount in liquidity and twelve
and half percent land in kind.”
In the said Suit, a Written Statement came to be filed by the
Defendant No. 1, wherein, the case of the Plaintiffs has been denied.
The Defendant No. 2 i.e. City and Industrial Development Corporation
(hereinafter referred to as “the CIDCO”) also filed its Written Statement.
In the Written Statement of the CIDCO, the entitlement on account of
the acquisition of land, by way of two plots, one at Kharghar and one at
Pachnand, has been stated. It has further been stated in paragraph 5 of
the Written Statement of the CIDCO that the plots have not yet been
given to the PAPs, their heirs, as they have not approached the said
Defendant and the lease agreement of the plots cannot be executed
unless they all approach together with proper proof of being PAPs
themselves or their legal heirs. It appears that an application for
temporary injunction, numbered at Exhibit5, came to be filed by the
Plaintiffs, which came to be rejected by the Trial Court. It seems that
the matter was not carried further and therefore, the rejection of the
application for temporary injunction became final.
After the application for temporary injunction was rejected, the
CIDCO allotted two plots to the Defendant No. 1, and 20 others by
allotment letter dated 26th May, 2008. The Defendant No. 1 thereafter
entered into a Tripartite Agreement with one Gurukripa Enterprises on
16th July, 2008, to which agreement, the CIDCO was also a party. The
said Gurukrupa Enterprises, in turn, executed a Tripartite Agreement on
12th November, 2009 in favour of one Limani Developers, to which also
the CIDCO was a party. The said Tripartite Agreements were executed
by complying the formalities in that regard, in the matter of payment of
additional lease premium to the CIDCO as per rules. It appears that the
ig
said Limani Developers thereafter undertook development and today,
according to the learned Senior Counsel appearing for the Defendant
No. 1, a building has been put up on the said plot of land.
The parties went to trial. The issues in the Suit were framed on
4th July, 2006. The Plaintiffs have led evidence of seven witnesses,
amongst whom are the Plaintiffs Nos. 1 and 2. In the context of the
present Petition, it is relevant to note that the Plaintiff No. 2, in her
crossexamination by the Defendant No. 1, has stated that the papers
regarding the transfer of the plots by the Defendant No. 1 to one N. H.
Patel (concerned for Gurukupa Enterprises) were with her, but she has
not produced them on record. She has further stated that she became
aware of the transfer of plots three years back i.e. three years prior to
the date of her deposition on 6th August, 2011. It is after leading the
evidence of seven witnesses that the application for amendment of the
Plaint was filed on 10th October, 2013. By the said application, the
impleadment of Gurukrupa Enterprises, through its partners, as
Defendant No. 3, as well as the impleadment of the said Limani
Developers, through its partners, as Defendant No. 4, was sought. By
the said amendment, the averments i.e. the allotment by CIDCO to the
Defendant No.1, thereafter the transfers by the Defendant No. 1 to the
proposed Defendant No. 3 and by the proposed Defendant No. 3 to the
proposed Defendant No. 4 were sought to be incorporated. Based on
the said averments, additional prayers were sought to be incorporated
in the Plaint. It was averred in the said application that the Plaintiffs
became aware of the allotment from one Munraj Puri who is conversant
with the allotments made under the 12.5% scheme of CIDCO and
thereafter on making inquiries in the SubRegistrar’s on 27022013
they became aware of the transaction between the Defendant No.1 and
the Defendant No.3 and the Defendant No.4. It would be relevant to
reproduce the prayers, which were sought to be incorporated in the
Plaint, which are prayer clauses (d1) to (d5), which, for the sake of
ready reference, are reproduced herein under:
“d(1) That, the Agreement to Lease dated 26th May, 2008
executed by Defendant No. 2 CIDCO in respect of Plot No. 72,
Sector 20, at Kharghar, the subsequently executed Tripartite
Agreement dated 16/7/2008 in favour of Defendant No. 3 in
respect of the Plot No. 72, further the Tripartite Agreement dated
12/11/2009 executed in favour of Defendant NO. 4 in respect of
the same property be declared as null and void and not binding
upon to the extent of the share of the Plaintiffs.
d(2)
It may be please be declared that, the Plaintiffs are jointly
entitled for 2167 sq. mtrs., area out of the total area admeasuring
3250 sq. mtrs., in Plot No. 4, situated at – Taloje Pachanand
which came to be share of deceased Sonubai (Aminabai).
d(3) It may please be declared that, the Plaintiffs are jointly
entitled for 87 sq. mtrs., out of the total area of Plot No. 72,
admeasuring 1550 sq. mtrs., at Kharghat which came to the share
of deceased Sonubai (Aminabai)
d(4) The preliminary decree of partition may be pleased be
passed accordingly.
d(5) The preliminary decree may pleased be send to the
Collector of Raigad/ and or before the Competent Authority for
execution of the partition by metes and bounds in respect of the
suit properties, in accordance with the shares of the parties and
allotment to the Plaintiffs of their divided share in severally.”
Hence, by way of the amendment, two new parties were sought
to be added. The substantial averments regarding them as also prayers
sought against the said parties were also sought to be incorporated.
The said application was replied to on behalf of the Defendant
No. 1. The said application was opposed inter alia on the ground that
the application to implead the proposed Defendants and the averments
in the Plaint has been filed beyond limitation, that the application could
not be entertained as the Suit is at the fag end and that if the
amendments as sought by the application are allowed, the nature of the
Suit will change.
5)
The Trial Court considered the said application and as
indicated above, by the impugned order dated 26th November, 2013,
rejected the same. The gist of the reasoning of the Trial Court is that
the Plaintiffs, in seeking the said amendment, have not been diligent, as
the averments are sought to be moved long after the evidence of the
Plaintiffs is over. The Trial Court also observed that the relief by way of
declaration sought in respect of the agreements between the Defendant
Nos. 1 and 3 and the Defendant Nos. 3 and 4 was beyond the period of
three years and therefore, barred by Article 58 of the Limitation Act.
The Trial Court observed that the amendments are not required to be
allowed, as the parties have entered into a transaction during the
pendency of the Suit and therefore, the parties would be bound by the
decision in the Suit. The Trial Court further held that the amendments,
if allowed, would change the nature of the Suit, as the Suit being filed
originally for declaration in respect of the Gift Deed and Will Deed and
for accounts would be converted into a Suit for partition. The Trial
Court lastly observed that impleading the proposed Defendant Nos. 3
and 4 would set the clock back, as the whole rigmarole of filing of
Written Statement by the proposed Defendants, the leading of evidence,
would have to be gone through once again. As indicated above, it is the
said order dated 26th November, 2013 which is taken exception to by
way of the above Petition.
6)
SUBMISSIONS OF SHRI. S.S.KULKARNI, the learned
Counsel appearing for the Petitioners:
(i)
That the Trial Court erred in adjudicating the application
on the touchstone of Order VI Rule 17 of the CPC.
That the Trial Court failed to appreciate that the application
(ii)
was one under Order I Rule 10 of the CPC and therefore, what was
required to be seen by the Trial Court was whether the proposed
Defendants were necessary or proper parties to the Suit.
(iii)
That the transferee pendente lite, who, in the instant case,
are the Defendant Nos. 3 and 4, are required to be brought on
record for a complete and effectual adjudication of the dispute.
In support of the said submission, reliance was placed on
the Judgment of the Apex Court in the case of Thomson Press
(India) Ltd.1, in the case of Amit Kumar Shaw and Anr. vs.
Farida Khatoon and Anr.2 and in the case of Dhanlakshmi and
Ors. vs. P
. Mohan and Ors.3.
That the delay cannot come in the way of the Plaintiffs in
(iv)
seeking the amendment, as an issue can be framed in that regard
and can be tried at the time of trial.
(v)
That the Trial Court has discretion even to allow a time
barred amendment.
Support is sought to be taken in that regard from the
Judgment of a learned Single Judge of this Court in the case of
Banu w/o. Kutubuddin Sulemanji Vimanwala and Anr. vs.
Kutubuddin Sulemanji Vimanwala4.
(vi)
That the ground of the clock being set back is not a ground
for rejecting the application for amendment, if the amendments are
2013 (5) SCC 397
2005 (11) SCC 403
2007 (10) SCC 719
1995 (2) Mh. L. J. 506
necessary for a complete and factual adjudication of the Suit.
Reliance is sought to be placed on the Judgment of a
learned Single Judge of this Court in the case of Krishnaji
Shankar Moghe vs. Sitaram Gangadhar Shende5, wherein, the
learned Single Judge has held that if subsequent events are in
relation to the subject matter of dispute between the parties and
are necessary to decide the real controversy, mere delay in filing
the application for amendment or because a party to the
proceedings will have to lead evidence consequent to the
amendment of the pleadings, cannot be a justification for refusal of
the application for amendment.
(A)
7)
SUBMISSIONS OF SHRI. A. S. RAJADHYAKSHA, the
learned Senior Counsel appearing for the Respondent No. 1:
That the order passed by the Trial Court, rejecting the
application for amendment, in the facts and circumstances of the
present case, cannot be found fault with and hence, the exercise of
Writ Jurisdiction of this Court is not warranted.
(B)
That the application in question has been rightly styled as
one under Order I Rule 10 of the CPC read with Order VI Rule 17
of the CPC. It is therefore not open for the Petitioners to contend
that it is only under Order I Rule 10 of the CPC.
(C)
That the amendments sought to introduce new parties,
averments and add prayers cannot be justified on the ground that
the averments and the prayers are only consequential to the parties
being impleaded, when substantive reliefs are sought against the
proposed Defendants.
5 2003 (1) Mh. L. J. 233
(D)
That allowing the amendments would result in a time
barred claim being introduced, as the declaration sought in respect
of the two Tripartite Agreements is admittedly beyond the period of
three years. This is on the Plaintiffs’ own showing, in terms of
deposition of the Plaintiff No. 2 in her crossexamination.
(E)
That the application for amendment would also have to be
considered on the touchstone of Order VI Rule 17 of the CPC, after
the amendment in the CPC, in the year 2002, as in the instant case,
admittedly, the Trial has commenced long before the application
for amendment was moved.
Reliance in support of the said contention is placed on the
Judgment of the Apex Court in the case of Alkapuri Cooperative
Housing Society Ltd. vs. Jayantibhai Naginbhai (deceased)
through legal heirs6. The Apex Court, in the said Judgment, has
observed that there cannot be any dispute as regards the Court’s
jurisdiction to consider an application for amendment of the
pleadings, as the prayer is wide in nature, but when by reason of
an amendment a third party is sought to be impleaded, not only
the provisions of Order VI Rule 17 of the CPC would apply but also
the provisions of Order I Rule 10 of the CPC when a new party is
sought to be added keeping in view the provisions of SubRule 5 of
Rule 10 of Order I of the CPC, question of invoking the period of
limitation would come in/end.
8)
CONSIDERATIONS:
Having heard the learned Counsel appearing for the parties, I
have bestowed my anxious consideration to the rival contentions. As
6 AIR 2009 SC 1948
indicated in the earlier part of this Judgment, the Suit as originally filed
is seeking a declaration that the Gift Deed in favour of the Defendant
No. 1 dated 30th September, 1995 be declared as bogus and illegal and
also for a declaration that the Plaintiffs have 1/12 th share in the
properties and that the registered Will dated 1st July, 1995 executed by
the said Sonabai is legal and valid and for permanent injunction. The
substantive reliefs, therefore, have been sought by way of declarations
in respect of the Gift Deed and the Will Deed. By the amendments,
which were sought by the application, two new parties are sought to be
added and averments are sought to be introduced in respect of the
allotment of the plots to the Defendant No. 1, the transfer of the plots
by the Defendant No. 1 to the Defendant No. 3 by the agreement dated
16th July 2008 and thereafter by the Defendant No. 3 to the Defendant
No. 4 by agreement dated 12 th April 2009 and prayers are sought to be
added in respect of the said agreements dated 26 th May, 2008, 16th July,
2008 and 12th November, 2009. The Plaintiffs have also sought
partition in respect of the plots, which have been allotted. As indicated
above, the Trial Court has rejected the application inter alia on the
ground that the Plaintiffs have not been diligent in moving the
application, that the declarations sought in respect of the agreements
would be beyond the period of three years, that the Plaintiffs’ version of
they having acquired knowledge of the transfers only on 26 th July, 2013,
through one Munraj Puri could not be accepted in the teeth of the
evidence of the Plaintiff No. 2, that the amendments, if allowed, would
change the nature of the Suit, as the Plaintiffs are now claiming
partition of the plots allotted, which is based on a different cause of
action.
9)
Insofar as the present Petition is concerned, in the context
of the submission of the learned Counsel appearing for the Petitioners
Shri. Kulkarni that the application would have to be considered only on
the touchstone of Order I Rule 10 of the CPC, the defining aspect would
be the fact that the trial in the Suit in question has already commenced.
If that be so, the entitlement of the Plaintiffs to seek amendment in the
Plaint would therefore have to be considered on the touchstone of
Order VI Rule 17 of the CPC. The said provision has undergone a
change by virtue of the amendment, which has taken place in the year
2002 and a proviso to the said provision has been incorporated by
virtue of the said amendment, which reads thus:
“17. Amendment of pleadings. The Court may at any stage of
the proceedings allow either party to alter or amend his pleadings
in such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose of
determining the real question in controversy between the parties.
Where, however, an application for amendment is made by the
plaintiff in a suit in which the defendant has not appeared, though
served with a summons, and where in the opinion of the Court the
amendment applied for is a material one, the Court shall give
notice of the application to the defendant before allowing the
amendment; and where in the absence of the defendant the Court
grants any amendment in a form materially different from that of
which notice has been given to the defendant, a copy of the
amended plaint shall be served on the defendant.”
Provided that no application for amendment shall be
allowed after the trial has commenced, unless the Court comes to
the conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial.
In the said context, it would also be advantageous to refer to the
Judgment of the Apex Court in the case of Abdul Rehman and Anr. vs.
Mohd. Ruldu and Ors.7, wherein, the Apex Court has defined the
parameters for consideration of an application for amendment of the
Plaint, after the trial has commenced and has laid down the matters to
be considered, of which, one aspect is whether the relief claimed by way
of amendment is time barred. The Apex Court has further held that if
an application is made after the commencement of the trial, in that
event, the Court would have to arrive at a conclusion that inspite of due
diligence, the party could not have raised the matter before the
commencement of trial. In view of the fact that the amendment
application has admittedly been moved after the commencement of the
trial, the mandate of Rule 17 would have to be followed, namely that
the Plaintiffs would have to satisfy the Court that inspite of due
diligence, they could not have moved the amendment earlier. Insofar as
the said aspect is concerned, the deposition of the Plaintiff No. 2
assumes significance. The Plaintiff No. 2 has unequivocally stated in
7 2012 (11) SCC 341
her crossexamination that she was having the papers of the transfers,
which were effected by the Defendant No. 1 in favour of Shri. N. H.
Patel (partner of Gurukrupa Enterprises) and that she became aware of
the transfers three years prior to the date, on which, she deposed. The
Plaintiffs have sought to justify the delay in moving the amendment
application by putting forward an explanation that they were not aware
of the allotment, until one Munraj Puri, who is acquainted with the
ig
allotment under the 12.5% scheme told them that the allotment of plots
was deficient having regard to entitlement of the Plaintiffs and that it is
thereafter that the Plaintiffs made enquiries and on making enquiries
with the SubRegistrar’s office, they became aware of the transfers on
27th September, 2013. This explanation was not found worthy of
acceptance by the Trial Court, on the ground that no particulars, as to
when the said Munraj Puri told the Plaintiffs about the said facts, have
been given and that the said explanation could not be accepted in view
of the statements, which have come in the deposition of the Plaintiff No.
2. In my view, the Trial Court was right in holding that the Plaintiffs
have not satisfied the due diligence test. The Trial Court has also held
that the declaration sought by way of the amendments, which would be
introduced in the year 2013 would be time barred, having regard to
Article 58 of the Limitation Act. In view of the fact that rights have
accrued in favour of the proposed Defendant Nos. 3 and 4, it is not
possible to accept the contention of the learned Counsel appearing for
the Petitioners that the issue of limitation can be kept open for being
adjudicated at the time of trial, as in the instant case, exfacie, the relief
sought by way of declaration in respect of the agreements is barred. In
the light of the fact that the trial has already commenced, the
submission of the learned Counsel appearing for the Petitioner that the
application has to be considered giving predominance to Order I Rule
10 of the CPC, cannot be accepted. Accepting such a contention would
render the provisions of Rule 17 of Order VI of the CPC otiose. Apart
from the same, having regard to the well settled principles, applicable
whilst considering an application for amendment, namely that in
allowing the amendment, the nature of the Suit would not change and
time barred claims are not introduced. If the application is considered
by applying the said principles, then, the order passed by the Trial Court
cannot be faulted with, as by way of the instant amendments, the Suit
for declaration in respect of the Gift Deed and Will Deed is sought to be
converted to a Suit seeking declaration in respect of three agreements
and the relief of partition. The Plaintiffs have also sought to change
their entitlement from 1/12th to 2/3rd and therefore, the finding of the
Trial Court that the same would change the nature of the Suit, cannot
be faulted with.
10)
Now, coming to the Judgments cited on behalf of the
Petitioners i.e. in the case of Thomson Press (India) Ltd. (supra) and
Amit Kumar Shaw and Anr. (supra), the said cases involve the
applications made by the transferee's pendente lite for being joined as
parties to the Suits filed for specific performance and whose
applications were rejected. It is in the context of the fact that the
transfers would be hit by Section 52 of the Transfer of Property Act,
1982. The Apex Court held that the impleadment of the transferee
would be necessary for a complete and effectual adjudication of the
Suit. The Apex Court, in the case of Amit Kumar Shaw and Anr.
(supra) observed that the question that would be required to be
addressed by the Court was whether the enforceable right of the person,
who seeks his impleadment, would be affected, if not joined. Insofar as
Dhanlakshmi's case (supra) is concerned, in the said case, the issue of
impleading the transferees in a partition suit, by coowners, was the
issue. In the context of the partition suit, the Apex Court held that the
transferees from a coowner are necessary and proper parties. In the
instant case, it is the Plaintiffs who have applied for adding the
proposed Defendants, who have acquired rights in respect of the plots
in question by the agreement executed by the Defendant No. 1 in favour
of the Defendant No. 3 and thereafter the Defendant No. 3 in favour of
the Defendant No. 4 and are seeking to introduce averments in the
Plaint relating to the said transfers and seek reliefs in respect of the said
transactions. Therefore, this is not a case where third parties are
seeking their impleadment in the Suit so as to protect their interests.
The instant application would therefore have to be considered having
regard to the well settled principles applicable after the trial has
commenced i.e. the proviso to Order VI Rule 17 of the CPC. If so
considered, as held by the Trial Court whilst rejecting the application,
the Plaintiffs have failed to satisfy the due diligence test and that the
of the Suit.
11)
incorporation of the amendments in the Suit would change the nature
Now, coming to the Judgment of the learned Single Judge
of this Court in the case of Banu w/o. Kutubuddin Sulemanji
Vimanwala and Anr. (supra), in my view, apart from the fact that the
said Judgment was rendered prior to a amendment of the CPC in the
year 2002, it is in the facts of the said case that probably the learned
Single Judge has observed that in exceptional circumstances the Court
has power even to grant a time barred amendment. In the instant case,
no exceptional circumstances can be seen or made out so as to permit a
time barred amendment.
Insofar as the Judgment of the learned Single Judge of this Court
in the case of Krishnaji Shankar Moghe (supra) is concerned, the
cause for citing the said Judgment are the observations made in
paragraph 27 of the impugned order. In my view, it was not necessary
for the learned Civil Judge Senior Division to make the said
observations, as obviously, an amendment application cannot be
rejected on the ground that it would entail the following of the
rigmarole of the filing of the Written Statement leading of evidence etc.
In my view, since the Trial Court has not deemed it fit to allow the
amendments, for the reasons mentioned in the impugned order, namely
i.e. the due diligence test not being satisfied and the change in the
nature of the Suit, it was not necessary for the learned Civil Judge
For the aforesaid reasons, there is no merit in the above
12)
Senior Division to make such observations.
Petition. This Court does not find any error of jurisdiction, committed
by the Trial Court, in rejecting the application or any other illegality or
infirmity committed by the Trial Court, for this Court to interfere in its
Writ Jurisdiction under Article 227 of the Constitution of India. The
Writ Petition is accordingly dismissed.
(R. M. SAVANT, J.)
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