Allowed

Arvind Vasantrao Zambre v. the State of Maharashtra and Ors.

Bombay HC21 Feb 2008WP/784/2007

Case brief

AI extract

What is this about?

This high court judge allowed a writ petition and an application for amendment under CPC to add a necessary party to a pending civil suit, upholding that the plaintiff did not suffer loss from impleadment despite delay.

What did the court decide?

Writ petition allowed; Amendment application allowed with costs of Rs.1500 to Bar Library of Pune; Amendment to be carried out within three weeks; Trial court to dispose expeditiously.

Arvind Vasantrao Zambre Vs the State of Maharashtra and… — Specific Performance | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO.784 OF 2007

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 Arvind Vasantrao Zambre .. Petitioner.
 Vs.

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 State of Maharashtra & Ors. .. Respondents.

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 Mr.R.G.Ketkar for the petitioner.
 Ms.V.S.Mhaispurkar AGP for the respondent-State.
 Mr.S.S.Kulkarni for respondent nos.3, 5 and 7 to 19.

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CORAM : D.B.BHOSALE, J.
DATED : 21ST FEBRUARY, 2008.
P.C.:

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 . Heard learned counsel for the parties.

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 2. Rule, returnable forthwith.

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 3. By consent of the parties taken up for final

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 hearing. Ms.Mhaispurkar, learned A.G.P. waives
 notice on behalf of the respondent-State and
 Mr.Kulkarni, learned counsel waives notice on behalf
 of respondent nos.3, 5 and 7 to 19. None appears for

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 other respondents, though served.

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 4. This petition impugns an order dated 14th
 December, 2006 passed by the trial Court on the
 application at Exhibit-258 in civil suit No.941 of
 1987 by which the application for amendment has been
 dismissed for the reasons recorded in the impugned

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 order and more particularly in paragraphs 4 and 5

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 thereof. The trial Court after considering merits of

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 the contentions urged by the parties has recorded a
 finding that the proposed defendant in a suit is
 neither proper nor necessary party.

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 5. By way of an amendment the

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 petitioners-plaintiffs sought to implead All India
 Shree Shivaji Memorial Society - defendant no.20 and
 make consequential amendment in the body of the
 plaint. The application has been rejected on the
 grounds of delay and on merits. I perused the order
 impugned and other material placed before this court.
 It appears that defendant no.2 on 6th October, 1994
 had amended the written statement filed by him on
 24.2.1988 stating therein that defendant no.2 is a
 registered trust as per the provisions of Bombay
 Public Trust Act and had mentioned the P.T.R. number
 of the trust. Thereafter in additional written
 statement filed by the defendants on 20.11.2004, in
 paragraph 7 they made the following averments:

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 "7. The present Defendant No.2 is the
 school of the registered trust -- All India
 Shri Shivaji Memorial Society and it is
 herewith submitted that the said trust is not
 made the party to the present suit and the
 suit therefore against Defendant No.2 as such
 is not maintainable."

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 6. In view of the aforesaid averments made in

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 the written statement dated 20.11.2004 the
 petitioners-plaintiffs filed an application under
 Order 1 Rule 10 and Order 6 Rule 17 of the Code of
 Civil Procedure. From bare perusal of the averments
 made in paragraph 7 in the written statement dated
 20.11.2004 it is clear that the proposed defendant is
 not only necessary but it is a proper party to the
 instant proceedings it being the Trust which runs
 defendant no.2 - institute. Admittedly, defendant

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 no.2 is not a Trust. It is true that there is a long
 delay in filing this application. The suit is still
 pending. From the facts of the case, I am satisfied
 that the petitioner/plaintiff did not stand to
 benefit by not impleading the proposed defendant as
 party to the suit. It appears that the plaintiff was
 not aware that the proposed defendant is the Trust
 which runs defendant no.2 - institute. Considering
 the delay in filing the application I am satisfied
 that application for amendment can be allowed with
 costs. Hence I pass the following order:

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 . The writ petition is allowed. The
 application at Exhibit-258 filed by the

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 petitioner-plaintiff for amendment is allowed with
 costs of Rs.1500/- payable to the Library of the Bar
 Association, Pune within a period of two weeks from
 today. The petitioner to carry out the amendment
 within three weeks from today. The trial Court shall
 proceed with the hearing of the suit and shall
 endeavour to dispose it of expeditiously. It is open
 for the defendants to file additional written
 statement, if they so desire, within four weeks from
 the date of carrying out the amendment. The added
 respondent shall have a liberty to file their written
 statement after service of summons within the time
 stipulated under Order 8 Rule 1 of the Code of Civil
 Procedure. The writ petition is disposed of.

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(D.B.BHOSALE, J.)

Arvind Vasantrao Zambre v. the State of Maharashtra and Ors.

Case brief

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Arvind Vasantrao Zambre v. the State of Maharashtra and Ors.

Case brief

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