Allowed

Kishor Gulabchand Bhandari v. Sumati Sahebrao Ghadge and Another

Bombay HC1 Jul 2014WP/7054/2013

Case brief

AI extract

What is this about?

In a writ petition, the High Court quashed the trial court's order rejecting an amendment application under Order 6 Rule 17 CPC. The Court allowed the amendment to correct the defendants' status in a suit against a public trust, noting no prejudice would result.

What did the court decide?

The impugned order of 12/08/2013 rejecting the amendment application is quashed. Petitioner permitted to amend plaint after paying costs of Rs. 10,000 to respondents.

Kishor Gulabchand Bhandari Vs Sumati Sahebrao… — Civil Procedure and Limitation | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 7054 OF 2013

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Kishor Gulabchand Bhandari, Age:49 years, Occ: Business, R/o. C/o. Gulabchand & sons Carpetwala, 3428, Chirst Galli, Ahmednagar. ...Petitioner

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versus

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Sumati Sahebrao Ghadge, Age: 52 years, Occ: Service, R/o. C/o. Trimurti Pawan Pratishthan, Newasa Phata, Tal. Newasa, Dist. Ahmednagar and another.

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...Respondents

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Mr. Satyajit S. Bora, Advocate for the Petitioner. Mr. D.R. Korde, Advocate for Respondent No.1.

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CORAM : N.W. SAMBRE, J.

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DATED : 1ST JULY, 2014

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PER COURT :

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. The present petitioner-plaintiff in Regular Civil Suit

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No.392 of 2012 initiated against the respondents for recovery of amount, has moved an application Exhibit-71 for amendment in the plaint, before the Court of 4^th Joint Civil Judge, Senior Division, Ahmednagar, under Order 6 Rule 17 of the Code of Civil Procedure.

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The said application Exhibit-71 came to be rejected by the learned

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trial Court vide order dated 12/08/2013, as such present petition.

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Perusal of plaint, which is placed at page-11 of the petition, reflects that in the cause title of the plaint that the present petitioner-plaintiff has impleaded the defendants by their name and mentioned their name as C/o. Trimurti Pavan Pratishthan, Newasa Phata. If the pleadings in the plaint are looked into, the petitioner has come out with the case in paragraph-2 that defendant No.1 to the suit is President and defendant No. 2 is Secretary of the trust. The said trust is managing some educational institutions. The suit filed by the present petitioner-plaintiff has reached to the stage of cross examination of the defendants. The trial has already began. According to the present petitioner, the amendment is sought in the plaint for correcting the status of defendant Nos. 1 and 2. The petitioner submits that there will be no change in the pleadings made in the plaint except that of change in the status of the defendants. My attention is invited to the fact that in written statement, the defendants-respondents have come out with the case that the suit should have been proceeded with permission under Section 51 of the Bombay Public Trust Act, 1950 as suit is initiated against the trust. In short, the submission is that, the defendants are well aware of the fact that the suit is initiated against the public trust.

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According to learned Counsel for the petitioner, the learned trial Court while rejecting the application has lost sight of above issues and has rejected the application for reasons which are prejudicial to the petitioner. He submits that if amendment as is prayed for, is granted, no prejudice will be caused to the defendantsrespondents.

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While controverting to the above referred submissions, the learned Counsel for the respondents has strenuously urged that the application is rightly rejected by the trial Court. He has invited my attention to the provisions of Order 6 Rule 17 of the Code of Civil Procedure and submits that proviso to Rule 17 acts as rider on the initial part of the said Rule. He submits that the above referred fact was well within knowledge of the present petitioner and the petitioner remained negligent in carrying out corrections at appropriate time in the suit. The learned Counsel for the respondents submits that if the amendment as prayed for, is granted, same will have adverse bearing on the merits of the suit and that too, when the suit is fixed for cross examination of the defendants.

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Upon perusal of the plaint, it appears that though in cause title of the suit, parties are described by their name, however, in the pleadings, in particularly in paragraph-2, they are specifically

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described as President and Secretary of the Trust. Further pleadings in the suit reflects the intention of the plaintiff to initiate suit against the trust and not against individual. The said fact also appears to be within knowledge of the defendants, as defendants have moved an application for framing issue on the aspect of non-compliance of Section 51 of the Bombay Public Trust Act, 1950 i.e., absence of permission from Charity Commissioner before initiation of the suit against public trust.

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In my opinion, even if the suit has reached at the stage of cross examination of the defendants, if the application for amendment as prayed for, is granted, defendants will not be taken by surprise as already there are sufficient pleadings to that effect in the plaint, notice of which is taken by the defendants by raising appropriate defence in the written statement.

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In that view of the matter, the order passed by the learned trial Court on 12/08/2013 below Exhibit-71 in Regular Civil Suit No. 392 of 2012 is liable to be set aside. As such, the order impugned dated 12/08/2013 passed below Exhibit-71 is quashed and set aside, subject to cost of Rs. 10,000/- (Rs. Ten Thousand only) to be paid by the present petitioner to the respondents within period of two weeks from today. Upon payment of costs, the learned trial

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Court shall permit the petitioner to carry out appropriate amendment in the suit in view of Exhibit-71. The writ petition is disposed of in above terms.

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[ N.W. SAMBRE, J. ]

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Tupe/ 01.07.14

Kishor Gulabchand Bhandari v. Sumati Sahebrao Ghadge and Another

Case brief

What is this about?

What did the court decide?

Kishor Gulabchand Bhandari v. Sumati Sahebrao Ghadge and Another

Case brief

What is this about?

What did the court decide?

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