Petitioner challenged an order allowing amendment of plaint in a suit. Razor appeal dismissed; modification al false; issue of limitation on merits remains; order cannot be quashed.
Writ petition rejected; order allowing amendment confirmed.
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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Digitally signed by VARSHA VARSHA VIJAY VIJAY RAJGURU RAJGURU Date:2023.04.20 17:26:02 +0530
varsha
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9801 OF 2019
Mr Bharat Mulji Khona Proprietor of M/s Payal Enterprises
… Petitioner
M/s. Fiza Construction Co. through Prop. Shri. G.R. Mujawar and Ors. … Respondents
Mr. Nishant Tripathi, a/w Mr Somnath Iyer, i/b M. Tripathi and Co., for the Petitioner.
None for the Respondents.
CORAM: GAURI GODSE, J.
DATED: 13th APRIL, 2023
P.C.:-
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upon the decision of the Hon’ble Supreme Court in the case of South Konkan Distilleries and Another v Prabhakar Gajanan Naik and Ors1 . By relying upon the said decision, he submitted that if an amendment claim is barred by law of limitation on the date of application, the amendment should not be allowed. The learned counsel invited my attention to the proposed amendment, which seeks to challenge the transaction of the year 2008. He, therefore, submitted that the claim made by Plaintiff by way of the amendment is barred on the face of it, and hence amendment application should not have been allowed.
1 (2008) 14 SCC 632
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a party claiming on the basis of a prior transaction with three persons and compromise decree thereupon. The impugned order records the objections raised by the Petitioner to the proposed amendment. The learned Judge has rightly held that the objections raised by the Petitioner would become a question of fact for being tried on merits, and the same cannot be an impediment in allowing amendment application.
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amendment if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application, is to be taken account in the exercise of the discretion as to whether the amendment should be ordered. However, the Hon’ble Supreme Court has also held that the said factor does not affect the power of the court to grant amendment if that is required in the interest of justice. In the present case, the learned trial Judge has allowed amendment by correctly exercising the discretionary power. Hence, the said decision is of no assistance to the Petitioner.
(GAURI GODSE, J.)
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2 issues framed by the court
Whether a trial court's order allowing amendment of plaint under CPC violates principles of limitation when objections to the amendment are based on merits?
Whether the limitation bar on an amended claim can justify quashing an order allowing amendment if the claim's merits remain undecided?
Colour shows how this judgement treated each authority
South Konkan Distilleries and Another v Prabhakar Gajanan Naik and OrsReferred¶27
South Konkan Distilleries and Another v Prabhakar Gajanan Naik and Ors (2008) 14 SCC 632 · Who else cites this
Mr Bharat Mulji Khona / Proprietor of M/s Payal Enterprises
M/s. Fiza Construction Co.
GAURI GODSE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
