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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.5736 of 2016
Hai Hai Vanshiya Kshatriya Kasar Samaj,
A public trust, registered under
the Bombay Public Trust Act, having its registered office
at House No.179, Opp. City Post Office, Itwari, Nagpur,
through its Secretary, Shri Sunil Gorelalji Lakhete,
aged 56 years, Occ.-Teacher, R/o.-99
New Gyaneshwar Nagar, Manewada Road,
Nagpur. .... Petitioner.
-Versus-
Abhinandan Snacks Pvt. Ltd.
A company registered under the Companies Act, 1956,
operating at Near City Post Office, Itwari, Nagpur,
through its -
1] Managing Director,
Shri Rajendra Kumar Agrawal,
Major, Occ.- Business,
2] Director,
Smt. Premlata Rajendra Agrawal,
Major, Occ.-Business,
Both R/o.-918, Deshpande Layout,
Wardhaman Nagar, Nagpur-440008. .... Respondents.
With
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Writ Petition No.5737 of 2016
Shri Laxmi Saraswati Kalanka Deosthan,
A public trust, registered under the Bombay Public Trust Act,
having its registered office at House No.179,
Opp. City Post Office, Itwari, Nagpur,
through its Secretary, Shri Sunil Gorelalji Lakhete,
aged 56 years, Occ.-Teacher, R/o.-99
New Dnyaneshwar Nagar, Manewada Road,
Nagpur. .... Petitioner.
-Versus-
Abhinandan Snacks Pvt. Ltd.
A company registered under the Companies Act, 1956,
operating at Near City Post Office, Itwari, Nagpur,
through its -
1] Managing Director,
Shri Rajendra Kumar Agrawal,
Major, Occ.- Business,
2] Director,
Smt. Premlata Rajendra Agrawal,
Major, Occ.-Business,
Both R/o,-918, Deshpande Layout,
Wardhaman Nagar, Nagpur-440008. .... Respondents.
-------------------------------------------------------------------------------------
Mr. Anurag Gharote, Counsel for petitioner. Mr. S.V. Purohit, Counsel for resp. nos. 1 and 2.
------------------------------------------------------------------------------------- Coram :
KUM. INDIRA JAIN, . J
th
Dated : 28 July, 2017.
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ORAL JUDGMENT
Rule. Rule made returnable forthwith. Heard finally with the consent of learned Counsel for the parties. 2] The petitioners are plaintiffs in Regular Civil Suit Nos.230 of 2011 and 231 of 2011 instituted before the Small Causes Court, Nagpur for eviction and possession against the respondents.
3] The challenge in this petition is to the order dated nd 30-07-2016 passed by the learned 2 Additional Judge, Small Causes Court, Nagpur in Regular Civil Suit No.230 of 2011 and on 23-08-2016 by the learned Principal District Judge, Nagpur in Misc. Civil Appeal No.193 of 2016 thereby allowing application (Exhibit-57) for amendment in written statement under Order VI Rule 17 of the Code of Civil Procedure. 4] The proposed amendment was sought by defendants on the ground that suit property is within the jurisdiction of slum area and since plaintiffs have not obtained prior permission ::: Uploaded on - 03/08/2017 ::: Downloaded on - 08/08/2017 01:58:08 ::: 4 280717 Judg. wp 5737.16.odt from Competent Authority for institution of suit, the suit cannot be entertained, tried and decided by the Small Causes Court. 5] It is not in dispute that application for amendment was filed on 10-06-2016 at the stage of cross examination of plaintiffs' witness. The learned Counsel for petitioners submitted that in such a situation proviso to Order VI Rule 17 of the Code would be attracted and defendants having failed to demonstrate due diligence, application for amendment ought to have been rejected by the Courts below. According to learned Counsel defendants maintained silence for about five years and all of a sudden raised plea regarding maintainability of suit and the jurisdiction of the Court at the stage of cross examination of plaintiffs. The submission is that after commencement of trial, Court should be slow in allowing amendment and as defendants have not mentioned any reason in the application for delay, trial Court and appellate Court wrongly held that amendment in written statement can be allowed after the commencement of trial. On the scope and ambit of proviso to Order VI Rule 17 of the Code, learned Counsel for petitioner placed reliance on the following judgments :- ::: Uploaded on - 03/08/2017 ::: Downloaded on - 08/08/2017 01:58:08 :::
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(a) Ajendraprasadji N. Pande and another v.
Swami Keshavprakeshdasji N. and others [AIR 2007 SC 806].
(b) Vidyabai and others v. Padmalatha and another [AIR 2009 SC 1433].
(c) Chhabubai Haribhau Badakh v. S.H.
Khaatod and Sons and another [2009 (5) Bom.C.R. 311].
(d) Jayashree Subhash Kalbande and another v. Shri Bhaurao Nagorao Derkar and others [2015 (1) Bom.C.R. 403].
6] Per contra, learned Counsel for respondents submitted that in application for amendment defendants have specifically mentioned that they were not aware that property was situated in slum area and as soon as they came to know about the same they moved an application for amendment. The learned Counsel submitted that proposed amendment goes to the root of the matter and no prejudice will be caused to plaintiffs if amendment is allowed.
7] To substantiate the contention learned Counsel placed
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reliance on the decisions of the Hon'ble Supreme Court in Revajeetu Builders and Developers v. Narayanaswamy and Sons and others [(2009) 10 SCC 82] and Abdul Rehman and another v. Mohd. Ruldu and others [(2012) 11 SCC 341]. 8] With the assistance of the learned Counsel for parties this Court has perused the impugned orders. It is not in dispute that amendment application came to be filed at the stage of cross examination of plaintiffs' witness. Proviso to Order VI Rule 17 of the Code would be attracted in such a case. Under the said proviso no application for amendment shall be allowed after the trial has commenced unless party seeking amendment shows due diligence.
9] It is significant to note that proviso to Order VI Rule 17 of Code puts a rider in allowing amendment in case of absence of due diligence. The proviso was introduced to shorten the litigation and speed up the disposal of suit. This however does not put total embargo in allowing the application. The law is settled insofar as applicability of proviso to Order VI Rule 17 of the Code is concerned.
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10] In the case on hand defendant has specifically stated that
he was not aware about the fact that the suit property was situated in slum area and soon the fact struck to defendant he filed application (Exhibit-57).
11] As stated above, proposed amendment relates to the jurisdiction of Court to entertain, try and decide the dispute between the parties. It does not change the nature of defence raised by defendant in written statement. On the contrary, the same is essential as it goes to the root and pertains to competency of the Court to entertain, try and decide the dispute.
12] In the above premise, this Court does not find any fault in the concurrent findings recorded by the trial Court and the appellate Court. As such no interference is warranted in writ jurisdiction. Hence, the following order :-
O r d e r
(i) Writ Petition Nos.5736 of 2016 and 5737 of 2016 are dismissed.
(ii) Rule is discharged. No costs.
JUDGE
Deshmukh
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