Shobharam S/O Budhaji Bhagat vs Bhaskar S/O Mayaramji Bangadkar ...
2016 Latest Caselaw 4434 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      




                                               
                               NAGPUR BENCH, NAGPUR.


     WRIT PETITION NO. 377 OF 2016




                                              
     Shobharam s/o Budhaji Bhagat,
     Aged about 63, Occupation - Retired,
     R/o Near Bright Tuition Classes, 




                                       
     Sahakar Nagar, Bhandara, Tahsil and
     District Bhandara.       ig                        ....       PETITIONER


                         VERSUS
                            
     1) Bhaskar s/o Mayaramji Bangadkar, 
         Aged about 44 years, 
         Occupation - Business, 
      
   



     2) Rupesh s/o Mayaramji Bangadkar,
         Aged about 42 years, 
         Occupation - Business, 





     3) Vijay s/o Mayaramji Bangadkar, 
         Aged about 32 years, 
         Occupation - Business, 

     4) Shirish s/o Mayaramji Bangadkar,
         Aged about 30 years, 





         Occupation - Business, 

         All resident of Rani Laxmibai Ward,
         Sahakar Nagar, Bhandara, Tahsil 
         and District Bhandara.                         ....       RESPONDENTS

     ______________________________________________________________
                Shri S.V. Bhutada, Advocate for the petitioner, 
               Shri K.B. Zinjarde, Advocate for the respondents.
     ______________________________________________________________



    ::: Uploaded on - 08/08/2016               ::: Downloaded on - 09/08/2016 00:14:38 :::
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                                   CORAM : Z.A. HAQ, J.

DATED : 4 AUGUST, 2016.

th

ORAL JUDGMENT :

Heard Shri S.V. Bhutada, Advocate for the petitioner-

original plaintiff and Shri K.B. Zinjarde, Advocate for the respondents-

original defendants.

2.

Rule. Rule made returnable forthwith.

3. The plaintiff has assailed the order passed by the trial

Court allowing the defendants to amend the written statement.

4. The impugned order is challenged on the ground that the

application (Exhibit No.46) seeking permission to amend the written

statement is filed after the trial has commenced and the defendants

have not been able to establish that inspite of due diligence they could

not bring on record the pleadings sought to be brought on record by

amending the written statement. It is submitted that the learned trial

judge has transgressed his jurisdiction by giving a go-bye to the bar

created by proviso below Rule 17 of Order VI of the Code of Civil

Procedure. It is urged that the defendants had not given any reason in

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the application to explain why the pleadings were not incorporated in

the written statement. It is further argued that the submission made

on behalf of the defendants at the time of argument that the pleadings

were not incorporated in the written statement because of the mistake

of the Advocate of the defendants could not have been accepted by the

trial Court. To support the submissions, reliance is placed on the

judgment given by this Court in the case of Mr. Conception Fernandes

& Another vs. Mrs. Tasneem Shaikh & Others reported in 2014(5)

ALL MR 751. It is prayed that the impugned order be set aside and

the application (Exhibit No.46) be dismissed.

5. The learned Advocate for the respondents has supported

the impugned order and has submitted that the proposed amendment

is necessary for proper adjudication of the controversy involved in the

suit.

6. While passing the impugned order, the learned trial judge

was conscious about the bar created by proviso below Rule 17 of Order

VI of the Code of Civil Procedure as is reflected from the impugned

order. The learned trial Judge has consciously exercised his discretion

and jurisdiction while allowing the amendment application filed by the

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defendants. I do not find any patent illegality or perversity in the

impugned order. The learned trial Judge has not committed any error

of jurisdiction by allowing the amendment application.

The judgment relied upon by the learned Advocate for the

petitioner is distinguishable inasmuch as in that case the allegations

were made by the party against the earlier Advocate, but in the present

case the same Advocate continues to represent the defendants and he

has candidly admitted his mistake before the trial Court.

In view of the above, I see no reason to interfere with the

impugned order. The petition is dismissed. The parties to bear their

own costs.

                                                                                JUDGE





    adgokar






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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.