Plaintiff challenged the trial court's rejection of its amendment application Ex. 48 in a property suit. Holding the new application rested on later-obtained documents and that merits are for trial, the High Court quashed the impugned order and allowed the amendment.
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Digitally signed by ANANT ANANT KRISHNA KRISHNA NAIK NAIK Date: 2024.03.08 16:50:49 +0530
11.WP15803.2022 .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE CIVIL JURISDICTION
WRIT PETITION NO. 15803 OF 2022
M/s. Vijay Enterprises .. Petitioner
Versus
M/s Sab Developers & Anr. .. Respondents
Mr Bhavik Lalan i/b. G P & Associates for Petitioner
Adv. Sandeep D. Shinde for the Respondent No. 2
CORAM : M. M. SATHAYE, J.
DATED : 8 MARCH 2024
P.C.:
1.Rule. Learned Counsel for the Respondent No. 2 waives service.
Learned Counsel for the Petitioner states that he has privately served the
Respondent No. 1 and service affidavit is filed. In any case, perusal of the
impugned order shows that Respondent No. 1/Defendant No. 1 had granted
no objection to the proposed amendment, which is the subject matter of this
Petition. Rule made returnable forthwith. Heard finally by consent.
2.By this Petition under Article 226 & 227 of the Constitution of India,
the Petitioner/Original Plaintiff is challenging the Order dated 13 June 2022
passed by the Civil Judge, Senior Division, Kalyan below Ex. 48 in Special C.
S. No. 188 of 2018 (“the impugned Order ”for short), by which the
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Petitioner's application for amendment to the Plaint is rejected.
3.Heard learned Counsel for the Petitioner, who submitted that the
impugned order, in essence proceeds on the footing of rejection of the
Petitioner’s earlier application for amendment below Ex. 42 on 24 February
2022. He submitted that if the earlier amendment application Ex. 42 and
present amendment application Ex. 48 are perused, it is clear that present
application is filed due to certain new documents in respect of the suit
property being made available, which were not available when the earlier
application was filed. He submitted that the suit is at per-trial stage and
issues are yet to be framed and therefore the proposed amendment based on
new documents received ought to have been allowed. He submitted that the
proposed prayer in respect of the public notice dated 6 February 2018 issued
by the Respondent No. 2 is referable to said notice mentioned in original
pleadings.
4.Learned Counsel for the Respondent No. 2 supported the impugned
order and submitted that the earlier application for amendment was rejected
and the alleged change in the circumstances and the documents referred in
the new application can be considered during evidence and proposed
amendment is not required for the same. He has however fairly, not disputed
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the position that issues are not yet framed.
5.I have carefully considered the rival submissions and perused
documents on record. Perusal of the earlier application Ex. 42 shows that it
was filed on the premisethat due to inadvertence certain paragraphs have
been missed by the Petitioner's earlier lawyer. However, perusal of the
present application Ex. 48 shows that it is a detailed application making
reference to the applications made by the Petitioner to the Village Talathi
and the Corporation after the earlier application was filed. The earlier
application was filed on 18 September 2021 and the present application is
based on applications dated 6 October 2021 and 8 October 2021 made to
Talathi and Corporation Ward Office. Present application Ex. 48 shows that
Petitioner wants to include averments about application to the Talathi of the
concerned village and reply received from him, as also the RTI Application to
the Ward Office of the Respondent No. 2-Corporation and reply received
therefrom. Perusal of the proposed amendment also shows that the prayer is
made in respect of notice dated 6 February 2018, which indeed finds place
in the paragraph no. 19 of the plaint i.e. original pleadings. Therefore this
Court does not see any reason why the earlier order below Ex. 42 should be
a relevant reason for rejection of the present Application Ex. 48. Admittedly
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the trial has not commenced and issues are not yet framed.
6.The merits of the averments sought to be amended and the proposed
prayers are a matter of evidence and consideration by the Trial Court at
appropriate stage, which is yet to come. However, at the stage where the suit
stands today, the Plaintiff cannot be precluded from amending the plaint.
7.Further it is seen from the perusal of the impugned order that the
Trial Court has proceed on the footingthat neither the Plaintiff nor the
Defendant No. 1 has preferred any Municipal Appeal challenging the
taxation of the suit property. This consideration, again, is a matter of merits
and should not detain the Court from allowing the amendment. The
Respondents/Defendants will be obviously at liberty file their additional
written statement to the amendment. Also an omnibus observation in the
impugned Order that ‘subject matter involved in the suit is different than
proposed amendment’ is found to be made without consideration on merits,
which is not even the stage reached.
8.In that view of the matter, the petition is allowed and the impugned
order is quashed and set aside. The Petitioner's Application at Ex. 48 is
allowed. Necessary amendment in the suit be carried out within a period of
4 weeks from today with copy served upon the other side simultaneously.
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The Respondents shall be at liberty to file their additional written statement
to the proposed amendment within 4 weeks thereafter.
9. Rule is made absolute in above terms. No order as to costs.
10. All the concerned to act on duly authenticated/digitally signed copy of
this order.
(M. M. SATHAYE, J.)
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2 issues framed by the court
Whether the trial court erred in rejecting the plaintiff's application to amend the plaint when the trial had not commenced and issues were not framed.
Whether rejection of an earlier amendment application justified rejecting a new one based on subsequently obtained documents.
1 provisions across 1 enactments
M/s. Vijay Enterprises
M/s Sab Developers
M. M. Sathaye
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court