Bombay High Court
Ramdas S/O Daulat Karode And ... vs M/S Sms Infrastructure Ltd. ... on 2 August, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6926 OF 2014
1) Ramdas s/o Daulat Karode,
Aged about 72 years,
Occupation - Agriculturist,
2) Shankar s/o Daulat Karode,
Aged about 49 years,
Occupation - Agriculturist,
Both R/o Manegaon, Tq. Jalgaon-
Jamod, District - Buldhana. .... PETITIONERS
VERSUS
1) M/s. SMS Infrastructure Limited,
A Company registered under the
provisions of Companies Act, 1956,
having its registered office at IT Park,
Gayatri Nagar, Nagpur.
2) Deputy Executive Engineer,
Man Project, Khamgaon, Tq. Khamgaon,
District Buldhana.
3) The State of Maharashtra,
through Collector, Buldhana. .... RESPONDENTS
______________________________________________________________
Smt. M.P. Munshi, Advocate for the petitioners,
Shri A.V. Bhide, Advocate for the respondent No.1,
Shri H.R. Dhumale, A.G.P. for the respondent Nos.2 and 3.
______________________________________________________________
::: Uploaded on - 08/08/2016 ::: Downloaded on - 08/08/2016 23:58:49 :::
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CORAM : Z.A. HAQ, J.
DATED : 2
nd AUGUST, 2016.
ORAL JUDGMENT :
Heard Smt. M.P. Munshi, Advocate for the petitioner-
original plaintiffs, Shri A.V. Bhide, Advocate for the respondent No.1-
original defendant No.1 and Shri H.R. Dhumale, Assistant Government
Pleader for the respondent Nos.2 and 3-original defendant Nos.2 and
3.
2. Rule. Rule made returnable forthwith.
3. The plaintiffs have assailed the order passed by the trial
Court rejecting the application (Exhibit No.55) filed by the plaintiffs
under Oder VI Rule 17 of the Code of Civil Procedure seeking
permission to amend the plaint.
4. The application is rejected by the learned trial Judge on
the ground that the trial has commenced and the plaintiffs have not
been able to show that inspite of due diligence they could not bring on
record the pleadings sought to be brought on record by the proposed
amendment. The issues are framed, however, recording of evidence
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has not yet started. The learned trial Judge has committed an error in
relying on the proviso below Rule 17 of Order VI of the Code of Civil
Procedure for rejecting the application filed by the plaintiffs.
5. The learned Advocate for the defendant No.1 has
submitted that the pleadings sought to be now incorporated had been
in the knowledge of the plaintiffs since the filing of the civil suit and
there is no explanation for not incorporating the pleadings earlier.
Considering the nature of pleadings and the fact that if the
amendment is permitted the nature of claim of the plaintiffs will not
change and as the defendants have not been able to point out any legal
impediment which disentitles the plaintiffs from seeking the
amendment, in my view, the application filed by the plaintiffs is
required to be allowed.
6. Hence, the following order :
(i) The impugned order is set aside.
(ii) The application (Exhibit No.55) filed by the plaintiffs is
allowed.
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Rule is made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
adgokar
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CERTIFICATE
I certify that this Judgment uploaded is a true and correct
copy of original signed Judgment.
Uploaded by : P.M. Adgokar. Uploaded on : 08-08-2016.
P.A. to Hon'ble Judge.
