Ramesh A. Phatnani vs Kishor R. Madan
2002 Latest Caselaw 827 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Since both the petitions involve common question of law and facts, they were heard together and are being disposed of by this common judgment.

2. Heard learned Advocates for the respective parties.

3. Rule. By consent, rule made returnable forthwith.

4. The petitioner challenges the orders dated 30-1-2002 passed by the trial Court below Ex. 26 in Special Civil Suit No. 149 of 1999 and under Exh. 28 in Special Civil Suit No. 150 of 1999. By the impugned order the trial Court has dismissed the applications filed by the petitioner for amendment of written statement whereby the petitioner has sought to incorporate pleadings regarding objection to the territorial jurisdiction of the Court at Thane to entertain the suits on the ground that all the transactions between the parties had taken place within territorial limits of city of Mumbai.

5. It is not in dispute that the suits were filed in January, 1999 and the written statements were filed by the petitioner in September, 1999. Thereafter the plaintiffs' evidence was recorded and closed on 6-8-2000. Matter was thereafter fixed for evidence of the petitioner/defendant and hearing in that regard was fixed on 18-8-2000. However the petitioner filed an application for amendment of written statements seeking to incorporate the ground of objection regarding territorial jurisdiction of the Court at Thane. Same was rejected by the trial Court on 7-9-2001. The petitioner thereafter filed civil revision applications which came up for hearing before the learned Single Judge of this Court who by its order dated 20-11-2001 rejected the same observing that the applications for amendment did not mention that the entire cause of action had arisen in Mumbai nor did it state that no part of cause of action had arisen in Thane and only reason for challenging the jurisdiction of the trial Court was that the amounts were payable under the bills of exchange in Mumbai. It was also observed that if the petitioner files a fresh applications for amendment, the same shall be decided by the trial Court on merits.

6. The petitioner thereafter filed the present applications on 5-1-2002 seeking to incorporate in the written statements the pleadings regarding execution of bills of exchange at Mumbai, the cause of action having arisen within the territorial limits of Mumbai, the legal notice being served at Mulund, Mumbai, the bill of exchange being payable on demand at Mumbai and the Court at Thane had no jurisdiction to entertain the same as no part of cause of action had arisen at Thane. The trial Court by the impugned order dismissed the said applications mainly on the ground that the same are being belated and allowing the applications for amendment may cause serious prejudice to the respondents-plaintiffs.

7. The learned Advocate for the respondent placed reliance on the decision of the learned Single Judge in the cases of (i) Shalini Vyankatesh Puntambekar v. Jayaprakash R. Agarwal, 2002(Supp.) Bom.C.R. 484 : 2001(3) All.M.R. 303 (ii) Ganesh Rai v. 1st Addl. District Judge, Gazipur, and (iii) Delhi C. & G. Mills Co. Ltd. v. Ramjidas, and submitted that there are no material on record to disclose the absence of jurisdiction to Thane Court and the applications have been filed only to protract the litigation and to avoid facing of the trial, as the petitioner is fully aware that the respondents are bound to succeed in getting favourable decrees in the matters against the petitioner.

8. The decision of the learned Single Judge in the case of Shalini Vyankatesh Puntambekar (supra) was to the effect that in suits for eviction on the ground of acquiring suitable residence within the meaning of section 13(1)(l) of Rent Act, the written statement was filed stating that the premises were let out for business purposes and were being so used for the same. After recording of evidence of the plaintiff the defendant therein filed an application for amendment of the written statements to plead that the premises were let out not only for business purposes but for both residential as well as business purposes. It was held that such an amendment was surely after thought and at belated stage could not be allowed as it would take the plaintiff by surprise on the stand already taken by him in the evidence. Apparently the decision is of no help to the respondents in order to justify the impugned order. That was the case where the defendant wanted to retract from his admission in the written statements to the effect that the premises were in fact let out for business purposes only and by way of after thought he wanted to take defence to the effect that premises were let out for both purposes viz. business and residential. In view of the same, the application was held to be not maintainable.

9. In Ganesh Rai's case (supra) it was held that new case based upon the facts which were available to the plaintiff at the time of original claim and which were not added in the original plaint cannot be permitted to be set up by way of amendment at the appellate stage. So also fresh suit on amended plaint would be barred by limitation, the Court would be right in taking a view that injury cannot be compensated by costs and amendment in such circumstances deserves to be refused. Firstly the case in hand does not pertain to amendment to the plaint and secondly the issue of limitation does not arise at all. The proposed amendment is on the basis of facts which are already on record and only in the form of clarification thereof for objection regarding the territorial jurisdiction to the Court at Thane. That being so the decision in Ganesh Rai's case being totally on different set of facts is not attracted in the case in hand.

10. In Delhi C. & G. Mills Co. Ltd.'s case (supra) the issue involved was in relation to executability of the decree and while dealing with the said issue it was observed that the suit based on hundis filed in Delhi High Court, hundis having been drawn at Delhi and accepted at Calcutta, part of cause of action had arisen in Delhi and therefore Delhi High Court had jurisdiction to entertain such suit. Apparently the decision on the issue whether any part of cause of action had arisen within territorial limits of Thane Court is to be decided consequent to the issue to be framed regarding jurisdiction of the Court and the same could be on merits of the case and is not required to be considered at the time of considering application for amendment.

11. The pleadings which are sought to be introduced by amendment pertain to real question of controversy between the parties and considering the provisions contained in Order 6, Rule 17 of Code of Civil Procedure the application deserves to be allowed and merely because there is delay in filing the application for amendment the same could not have been rejected. Undoubtedly on such amendment being carried out the respondent plaintiff if so desire would be entitled to lead further evidence in the matter. At the same time the respondent-plaintiff having already closed his evidence and only thereafter application for amendment having been filed, certainly he would be entitled for costs while allowing the applications for amendment.

12. In the result, therefore, the petitions succeed. The impugned orders are hereby quashed and set aside. Applications filed by the petitioner on 5-1-2002 for amendment of written statements are allowed subject to payment of cost quantified at Rs. 1000/- in each of the petitions to be paid to the respondents. Rule made absolute accordingly with no order as to costs. Parties to act on copy of this order duly authenticated.