Dismissed

Mr. Pradip Machindra Gaikwad v. Nadaf Hajisab Mirasab and Ors.

Bombay HC25 Mar 2013WP/2967/2013

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order that rejected an application to amend the Petitioner's Written Statement in an election petition. The Court held the Trial Court's reasoning was tenable as the original averments were clear.

What did the court decide?

The writ petition against the order rejecting the amendment to the Written Statement was dismissed.

Mr. Pradip Machindra Gaikwad Vs Nadaf Hajisab Mirasab and Ors. — Election Law | Bombay HC (2013)

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48.wp.2967.13.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 2967 OF 2013

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Mr. Pradip Machindra Gaikwad ..Petitioner

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-Versus-

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Nadaf Hajisab Mirasab & Ors.

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..Respondents

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Mr.S.S.Kanetkar, Advocate for the Petitioner.

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Mr. Dharam Jumani i/b Mr.Kunal Bhanage for Respondent No.1.

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CORAM : R.M. SAVANT, J. DATE : 25^TH MARCH 2013

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P.C.

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1 The writ jurisdiction of this Court is invoked against the order dated 6.03.2013 passed by the learned Judge of the Small Causes Court, Pune by which order the application for amendment of the Written Statement being Exhibit 88 filed in Election Petition No.4/2012 came to be rejected.

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2 The said Election Petition has been filed by the Respondent No.1 herein under Section 16 of the Bombay Provincial Municipal Corporation Act, 1949. The gravamen of the allegation against the Petitioner is that he has more than two children on the cut-off date i.e. 13.09.2012 when the amendment in the BPMC Act came into force and is therefore disqualified to be a Councilor. The Petitioner herein has filed his Written Statement and in paragraph 9 of the Written Statement has

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S.K.Talekar

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elaborately dealt with the allegation made by the Respondent No.1 in the Election Petition. The Election Petition it seems is at the stage where the affidavit of Examination-in-Chief has already been filed by the Respondent No.1 and the Respondent No.1 is to be cross-examined by the Petitioner. It is at the said stage that the instant application Exhibit 88 came to be filed for amendment of the Written Statement to add paragraph 9A as mentioned in the application after paragraph 9. By the said amendment the Petitioner seeks to give a clarification in respect of what is stated in paragraph 9A in respect of the birth certificate produced of one Milan who is alleged to be his daughter.

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3 The Trial Court in the light of the averments as originally appearing in paragraph 9 opined that the averments now sought to be introduced by paragraph 9A were unnecessary as the said paragraph 9 is more clear than the averments now sought to be incorporated by way of paragraph 9A. As indicated above it is the order rejecting the said amendment application which is impugned in the present Petition.

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4 The learned counsel appearing for the Petitioner Mr.Kanetkar would contend that the amendment sought is only clarificatory in nature and does not change the defence of the Petitioner. The learned counsel would contend that the parameters applicable to allowing an amendment

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in the plaint than that in respect of the Written Statement are different and has been so expounded by the Apex Court in the Judgment reported in (2007) 5 SCC 602 in the matter of Usha Balasaheb Swami and Ors. V/s. Kiran Appaso Swami & Ors. The learned counsel would contend that if the amendment to the Written Statement does not result in withdrawal of any admission of the Petitioner or causing prejudice to the Election Petitioner then the same should be allowed.

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5 As indicated above, it is on a consideration of the averments as existing in the original paragraph 9 that the Trial Court did not deem it fit to allow the instant application Exhibit 88. In my view, the reasoning of the Trial Court in refusing the amendment sought vide the said application cannot be taken exception to having regard to the elaborate manner in which the averments are appearing in the original paragraph 9. It is well settled that an amendment which is unnecessary cannot be allowed. In that view of the matter, no case for interference in the writ jurisdiction in this Court is made out.

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Since by order dated 15.01.2013 passed in Writ Petition No.850 of 2012 liberty is already granted to the Petitioner to raise the points before the appropriate Court, it would be open for the Petitioner to raise the said points before the appropriate Court.

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S.K.Talekar

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With the aforesaid observations, the Writ Petition is dismissed.

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(R.M. SAVANT, J.)

Mr. Pradip Machindra Gaikwad v. Nadaf Hajisab Mirasab and Ors.

Case brief

What is this about?

What did the court decide?

Mr. Pradip Machindra Gaikwad v. Nadaf Hajisab Mirasab and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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