In a writ petition under Article 227 of the Constitution, the High Court held that amendment of written statement under Order 6 Rule 17 CPC did not affect merits. No interference called for as order was purely interlocutory. Trial deemed not commenced.
Writ petition dismissed. Order stayed for 4 weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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902.wp.6041.13
ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6041 OF 2013
Mohamed Yusuf Noorani and others
.. Petitioners
Vs.
Vipinchandra Harkisondas Sariaya and others .. Respondents
Mr. Uday Bobde i/b Ms.Rubia Taneja and Ms.Shama Taneja, for Petitioners.
Mr. Avinash Fatangre, for Respondents.
CORAM : R.G.KETKAR, J . DATE : 25th September, 2013
P.C. :
. Heard Mr. Uday Bobade, learned Counsel for the
petitioners and Mr.Avinash Fatangare, learned Counsel for the respondents at length.
No. 142/188 of 2009. By that order, the learned trial Judge allowed the application made by the respondents under Order 6 Rule 17 of Code of Civil Procedure, 1908 (for short 'C.P.C.') and permitted the respondents to amend the written statement.
902.wp.6041.13
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petitioners had instituted suit on 24/08/2009. Even before filing of the written statement, the respondents filed application on 27/10/2009 under section 9A of C.P.C raising preliminary issue of jurisdiction. The written statement was filed by the respondents on 27/01/2010. The petitioners did not examine themselves on the issue of jurisdiction. In view thereof, the respondents took out application for issuing summons to the plaintiffs on 28/09/2011. The respondents thereafter took out 2nd application for issuing witness summons to the plaintiffs which was rejected on 02/08/2012. Aggrieved by that order, the respondents filed writ petition in this Court which was rejected. One of the defendants entered into witness box and his cross examination began on 29/09/2010. While issue of jurisdiction was pending, the respondents filed application on 04/02/2013 under Order 6 Rule 17 of C.P.C. for amendment of written statement and by impugned order, the said application was allowed.
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902.wp.6041.13
Act, 2005 (for short 'Act'). These documents were all along with the respondents. He submitted that application for amendment was belatedly moved which clearly shows lack of due diligence. He therefore, submitted that the learned trial Judge committed serious error in allowing that application. He submitted that the application for amendment is clearly a frivolous application and even on this ground, the learned trial Judge ought to have rejected that application.
Arjun Dada Gadage Vs. Mallapa Gurappa Chougule,
2004(1) Bombay Cases Reporter 741 to contend that once the issue of jurisdiction is raised in view of section 9A of the C.P.C., the Court has to decide that issue first without deciding any other application.
902.wp.6041.13
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The trial Court has rightly held that the trial is yet to begin. He further submitted that while considering application of amendment, the Court is not expected to go into the merits of the proposed amendment. He also relied upon the decision of this Court in case of Immigrants Ideal Producers Co-operative Society Ltd Vs. Jahanara Moiz Dalal, 2004(2) Bombay Cases Reporter, 597 which has considered the earlier decision of this Court in case of Arjun Dada Gadage (supra). 8. I have considered the rival submissions made by the learned Counsel appearing for the parties. I have also perused the material on record. It is settled position of law that while considering the application for amendment, the Court is not expected to go into the merits of that application. Apart from that, the learned trial Judge has recorded a categorical finding that the trial is yet to begin. Mr.Bobade submitted that since the defendant is under cross examination, it has to be held that the trial has commenced and if that be so, the defendants have to make out a case of due diligence. It is not possible to accept this submission. The defendant is admittedly in the witness box in order to substantiate his contentions on the question of jurisdiction. As noted earlier Mr. Fatangre submitted that issues are yet to be framed and consequently, the evidence on merit of the dispute is yet to be led. In view thereof, it cannot be said that the trial has commenced. If that be so, one has to consider the provisions
902.wp.6041.13
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of Order 6 Rule 17 of C.P.C excluding the proviso and find out whether the respondents have made out a case for allowing the amendment. After perusing the impugned order and in particular, paragraph 6, I do not find that the learned trial Judge committed any error while passing impugned order.
The principles which have been laid down by the learned Single Judges in the aforesaid decisions are, with respect, correct. There can be no doubt about the question that once an issue of jurisdiction is raised, it has to be decided expeditiously, as a preliminary issue. The decision of that issue cannot be adjourned to the hearing of the motion for interim relief and in any event not to the trial of the suit. The question of jurisdiction has to be answered as expeditiously as possible, before other issue which arise in the suit are dealt with and before the entitlement of the plaintiff to relief on merits is considered. The question, however, in the present case is a more limited issue and that is as to whether the learned trial Judge was ousted from his jurisdiction to allow the amendment of the plaint altogether. The answer must be in the negative. It must be emphasised that in the present case, there is a finding recorded by the learned trial Judge that the bona fides of the plaintiffs could not be questioned. The application for amendment was not mala fide nor was it an effort to delay the disposal of the application questioning the jurisdiction of the Court.”
fours to the facts of the present case. In view thereof, I do not find any merit in the submission of Mr.Bobade that the learned trial Judge
902.wp.6041.13
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committed error in allowing the application for amendment pending the issue of jurisdiction.
of 4 weeks from today.
(R.G.KETKAR, J.)
1 issue framed by the court
Whether the High Court can interfere under Article 227 to allow amendment of written statement pending jurisdiction issue.
Colour shows how this judgement treated each authority
Arjun Dada Gadage Vs. Mallapa Gurappa ChouguleReferred¶28
Arjun Dada Gadage Vs. Mallapa Gurappa Chougule, 2004(1) Bombay Cases Reporter 741
Immigrants Ideal Producers Co-operative Society Ltd Vs. Jahanara Moiz DalalDistinguished¶33
Immigrants Ideal Producers Co-operative Society Ltd Vs. Jahanara Moiz Dalal, 2004(2) Bombay Cases Reporter, 597
2 provisions across 2 enactments
Mohamed Yusuf Noorani and others
Vipinchandra Harkisondas Sariaya and others
R.G. KETKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
