Dismissed

Rangnath S/O. Maruti Wakale v. Bhimabai W/O. Hiralal Dhanure and Ors.

Bombay HC14 Dec 2009WP/5686/2009

Case brief

AI extract

What is this about?

Petitioner challenged the rejection of his application to amend the plaint filed after trial commenced. The court held that under the amended CPC and Vidyabai judgment, no case was made out as the petitioner failed to prove due diligence before trial start. Writ petition dismissed.

What did the court decide?

Rejection of the writ petition challenging the impugned order rejecting the amendment application.

Rangnath S/O. Maruti Wakale Vs Bhimabai W/O… — Contract and Commercial Disputes | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 5686 OF 2009

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Rangnath s/o. Maruti Wakale

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.. petitioners

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Versus

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Bhimabai w/o. Hiralal Dhanure

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.. Respondent.

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Mr. P.F. Patni, Advocate for petitioner.

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CORAM : B.R. GAVAI,J.

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DATE : 14^th December, 2009.

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ORAL ORDER :-

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1] By way of present petition, the petitioner challenges the order dated 16^th July, 2009 vide which the application filed by the present petitioner, for amendment of the plaint came to be rejected.

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2] Shri Patni, learned counsel appearing on behalf of the petitioner submits that the learned trial court has grossly erred in rejecting the application, inasmuch as, the amendment which was sought was only for correcting a typographical mistake. The learned counsel relies on the

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judgment of the learned Single Judge in the matter of “ N.T.P.C. Ltd. Vs. Reliance Industries Limited” reported 2004(4) All M.R. 24, and the judgment of the Apex Court in the matter of “Revajeetu Builders and Developers Vs. Narayanswamy and sons and others “ reported in 2009 STPL (web) 103 SC.

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. He submits that in the matter of Revajeetu (supra) the Hon'ble Apex Court has laid down certain parameters in para.67, which are required to be considered by the court while granting or refusing the application for amendment. He submits that the said parameters does not lay down that an application for amendment after commencement of the trial is not to be entertained and therefore, the learned trial court ought to have allowed the application for amendment.

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3] The Apex Court in the matter of “Vidyabai Vs. Padmalatha and another” reported in JT 2009 (1) SC 302, has clearly held that after the amendment to CPC in 2002, in view of Proviso to Order 6 Rule 17, unless the party seeking amendment to the pleadings after commencement of trial satisfies the condition that the matter, which is sought to be brought on record, could not have been brought on record, prior to commencement of trial inspite of exercise of due diligence, the application should not be entertained. The Apex court has, in unequivocal terms, held that satisfaction of the pre-condition is a sine qua non for exercise of jurisdiction to entertain the application for amendment after commencement of trial.

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4] In so far as the judgment of the learned Single Judge of this court in the case of “NTPC Ltd.” (supra) is concerned, the learned Single Judge has come to the conclusion that the test as required under the provisions of Order 6 Rule 17 was satisfied so as to invoke the jurisdiction for amendment of the plaint. In that view of the matter, the said judgment is not applicable to the facts of the present case.

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5] In so far as the judgment of the Apex Copurt in the matter of “Revajeetu” (supra) is concerned, it is to be noted that the said case arose out of a suit which was filed in the year 1996. It is a settled position of law that suits which are filed prior to the amendment to CPC in 2002, will not be governed by the amended provisions of the CPC. In any case, the Apex Court in the said case has only laid down general parameters in para.67 which shall be taken into consideration while considering the application for amendment. However, as already pointed out, the said judgment pertains to the suit filed in the year 1996 and as such, it would not be governed by the amended provisions of the CPC. In any case, even in the said judgment, though the Apex Court considered the legislative history of the amendment to CPC in 2002, by which the proviso to Order 6 Rule 17 was added, it nowhere states that the said proviso is to be ignored by the court while considering the application for amendment.

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6] From the perusal of the application, it can very well be seen that the applicant has not even whispered that the amendment which is sought to be brought on record, could not have been brought on record prior to

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commencement of trial, inspite of exercise of due diligence, leave aside there being any explanation for the same. Admittedly, in the present case, the issues are framed and an affidavit in lieu of examination in chief has already been filed. As such, the trial has commenced. In that view of the matter, no case is made out for interference in the impugned order. Hence, the writ petition is rejected.

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Grt/-

Rangnath S/O. Maruti Wakale v. Bhimabai W/O. Hiralal Dhanure and Ors.

Case brief

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Rangnath S/O. Maruti Wakale v. Bhimabai W/O. Hiralal Dhanure and Ors.

Case brief

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