Dismissed

Symbiosis Society v. Kishore Rajaram Vitkar and Ors.

Bombay HC6 Oct 2022WP/9581/2016

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition challenging the lower court's order allowing amendment of pleadings after issues were framed. The court held lack of prejudice justified liberal granting of amendment before trial commencement, dismissing the petition but allowing a one-month window for filing an additional written statement.

What did the court decide?

Writ petition dismissed; Petitioner granted one month to file additional written statement.

Symbiosis Society Vs Kishore Rajaram Vitkar and Ors. — Execution and Attachment | Bombay HC (2022)

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Sonali

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SONALI MILIND PATIL

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Digitally signed by SONALI MILIND PATIL Date: 2022.10.10 14:54:20 +0530

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WRIT PETITION NO. 9581 OF 2016

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Symbiosis Society ...Petitioner
 Versus
Kishore Rajaram Vitkar & Ors. ...Respondents

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Mr. Manish Kelkar a/w. Mr. Ajinkya Udane, i/b. Mr. Ravi Bharadwaj, for
the Petitioner.

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CORAM : MADHAV J. JAMDAR, J.

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DATED : 6^th OCTOBER 2022

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P.C. :

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1. Heard Mr. Kelkar, learned counsel for the Petitioner.

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2.The impugned order in the present Writ Petition filed under
Article 227 of the Constitution of India is order dated 25th April 2016
passed in Revision Application No.19 of 2016 by the learned Member,
Maharashtra State Co-operative Appellate Court (Mumbai), Bench
Pune and order dated 29th December 2015 passed by the learned
Judge, Cooperative Court No.1, Pune below Exhibit ‘54’ filed by the
original disputants in Dispute No.131 of 2010. The said application at
Exhibit ‘54’ was filed for amendment and allowed by impugned order

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dated 29th December 2015. The said order was challenged by the
original opponent No.5 by filing Revision Application No.19 of 2016
and the said Revision Application was dismissed by the impugned
order dated 25th April 2016.

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3.Mr. Manish Kelkar, learned counsel for the Petitioner raised
only one contention that the issues were framed in the Dispute on
15th July 2014 and thereafter, application for amendment is made on
17th October 2014. He relied on Order VI Rule 17 of CPC to contend
that after the issues are framed, amendment could not have been
allowed unless the Disputants satisfy the Court regarding due
diligence as contemplated by proviso to Order VI Rule 17. He
submitted that once the issues are framed, the trial has commenced
and therefore, unless due diligence is shown, the amendment
application could not have been allowed. He relied on judgment of
Supreme Court in case of Vidyabai & Ors. vs. Padmalatha & Anr.1

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4. Order VI Rule 17 reads as under:-

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“17. Amendment of pleadings.—The Court may at any
stage of the proceedings allow either party to alter or

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1 AIR 2009 SCC 1433

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amend his pleadings in such manner and on such terms
as may be just, and all such amendments shall be made
as may be necessary for the purpose of determining the
real questions in controversy between the parties :
Provided that no application for amendment shall be
allowed after the trial has commenced, unless the Court
comes to the conclusion that in spite of due diligence,
the party could not have raised the matter before the
commencement of trial.”

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Proviso to Order VI Rule 17 provides that no amendment
application shall be allowed after trial has commenced, unless the
Court comes to the conclusion that inspite of due diligence, the party
could not have raised the matter before the commencement of trial.

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5. The Supreme Court in case of Vidyabai & Ors. (supra)has held

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that for the purpose of Order VI Rule 17 proviso, trial commences
when issues are framed and affidavit in lieu of examination-in-chief is
filed.

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6.The learned counsel for the Petitioner fairly submitted that
recording of evidence commenced on 2nd November 2017. Thus, it is
clear that trial has commenced only on 2nd November 2017. The
application for amendment was filed on 17th October 2014 and same

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was allowed by order dated 29th December 2015. Thus, in this case,
application for amendment was filed before the commencement of
trial.

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7.It is settled legal position that all amendment applications in
the plaint before commencement of trial are required to be granted
liberally as there is no prejudice which can be caused to the other
side. They will get fair opportunity to file additional written
statement. In view of this, no interference is called for in the
impugned order.

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8. The Writ Petition is dismissed.

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9. However, the Petitioner is granted opportunity to file additional written statement within a period of one month from today.

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10. All contentions on merits are expressly kept open.

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11. At this stage, learned counsel for the Petitioner submitted that

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by order dated 11th October 2017 passed by learned Judge,

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Cooperative Court, Pune application bearing No. 71 filed by the
opponent No.5 was allowed and issue No.1 was directed to be tried
as preliminary issue. He submitted that direction be issued to decide
issue No.1 in time bound manner. It appears that preliminary issue
was framed by order dated 11th October 2017. He submitted that
evidence as far as the preliminary issue is concerned, has already
been led and now matter is pending for arguments. He submits that
the same is pending for arguments since 3rd July 2018. In view of
these submissions, the learned Judge, Cooperative Court, Pune is
requested to decide the said preliminary issue expeditiously and in
any case within a period of four months from today.

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12.Writ Petition is dismissed subject to above direction. No costs.

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 MADHAV J. JAMDAR, J.

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Symbiosis Society v. Kishore Rajaram Vitkar and Ors.

Case brief

What is this about?

What did the court decide?

Symbiosis Society v. Kishore Rajaram Vitkar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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Parties & counsel

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