Bombay High Court
Gorakshan Sabha, Through Its ... vs Shri Vasantrao S/O Jagannath ... on 1 December, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 1297 OF 2015
PETITIONER : Gorakshan Sabha, A Public Trust duly
registered under the Bombay Public Trusts
Act, 1950, through its Secretary Shri Nikhil
S/o Prabhakar Mundle, aged 45 years,
Occupation : Business, having its registered
office at Gorakshan Sabha Layout,
Dhantoli, Nagpur
ig - VERSUS -
RESPONDENT : Shri Vasantrao S/o Jagannath Makde,
Proprietor, Laxmi Mangal Karyalaya,
Gorakshan Sabha Layout/Premises,
Dhantoli, Nagpur.
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Mr. B. G. Kulkarni, Advocate for the petitioner
None appears for the respondent
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CORAM : PRASANNA B. VARALE, J.
DATE : DECEMBER 01, 2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith.
2] By the present petition, the petitioner challenges the order
passed by the learned 2nd Additional Small Causes Court, Nagpur, dated
02.02.2015 in Regular Civil Suit No. 185/2007, thereby allowing
application (Exh.90) filed by the respondent/defendant seeking
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amendment to the written statement.
3] Perused the order passed by this Court, dated 24.08.2016,
wherein the controversy involved in this petition is referred to.
5] It was the submission of Mr. Kulkarni, the learned counsel
for the petitioner that the petitioner/plaintiff has instituted a civil suit
against the respondent/defendant seeking decree of possession. It may
not be necessary to go into the details of the claim and counter claim of
the parties or position of the respondent/defendant. Suffice to say that
the suit was opposed by the respondent/defendant by filing written
statement. The suit proceeded further and the parties lead their
evidence.
6] On 13.01.2015, an application (Exh.90) was filed by the
respondent/defendant under Order 6 Rule 17 of the Code of Civil
Procedure, seeking amendment in the written statement. The said
application was opposed by the petitioner/plaintiff submitting therein
that the suit was instituted in the year 2007 and all the necessary steps
in the process and progress of the suit are completed and the
application seeking amendment in the written statement is nothing but
an attempt to prolong the proceedings. It was specifically stated by the
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petitioner/plaintiff that if the application for amendment in written
statement is allowed, it would cause a serious prejudice to the plaintiff.
It was submitted that as the trial has already commenced, the
application filed at belated stage may not be entertained. However, the
learned Judge of the Small Causes Court, by observing that the
proposed amendment is necessary for deciding the real controversy and
no prejudice would cause to the plaintiff as the plaintiff has right to
cross-examine the defendant, allowed the application subject to
payment of costs of Rs.1000/-.
7] Perusal of the order sheets show that in spite of grant of
sufficient opportunities to the respondent/defendant, he is not present
before this Court. This Court made it clear by order dated 15.11.2016
that if none appears for the respondent on the next date, the petition
would be heard and decided on its merits finally. Considering these
aspects of the matter, the petition is being decided on merits.
8] The learned counsel for the petitioner was justified in
submitting that the learned trial Judge has committed serious error in
observing that no prejudice would be caused to the plaintiff by allowing
the application. The reply filed to the application at the instance of the
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petitioner/plaintiff clearly show that the application was opposed
submitting firstly that the application was filed at a belated stage and
secondly, the proposed amendment would not help the Court to decide
the real controversy as the necessary stages such as leading evidence of
parties is already completed and the trial is commenced. It was also
submitted that the intention of filing the application was only to fill up
the lacuna and prolonging the proceedings. The learned counsel for the
petitioner invited my attention to the evidence of the defendant placed
on record at Annexure-D. Perusal of the evidence of the defendant
shows that it was the stand of the deponent before the trial Court that
he was inducted as a tenant of the suit plot and was occupying the
premises to the extent of 1487 sq.mtr. and was paying rent of
Rs.6,325/-. It was further deposed by the defendant/deponent that he
was permitted to make construction over said plot and the defendant
carried out construction over said plot. The learned counsel, therefore,
submitted that when this was a particular and peculiar stand of the
defendant/deponent in his evidence, the application filed at the
instance of the defendant shows that a totally contrast stand is taken by
him in the application seeking amendment to the written statement.
9] In the application (Exh.90), the defendant had stated that
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premises was let out to a proprietory firm. Subsequently, there was
change in the constitution of the firm i.e. from proprietory to
partnership, from 1983 onwards. Thus, the amendment in the written
statement sought for by way of paragraph 17 was to the effect that the
suit filed by the plaintiff is not tenable as it was not filed against the
partnership firm, but against the defendant. The learned counsel for
the petitioner was justified in submitting that in the application, the
defendant has taken somersault from his stand in the evidence tendered
before the Court. The learned counsel was also justified in submitting
that allowing the application for amendment in written statement
thereby permitting the defendant to change his stand would certainly
cause a serious prejudice to the petitioner/ plaintiff. The learned Judge
of the Small Causes Court has failed to consider all these aspects. The
learned counsel for the petitioner was also justified in submitting that
the learned Judge clearly erred in observing that by way of proposed
amendment, the defendant only wants to add a new ground and is not
withdrawing his previous admission given in the written statement.
10] Considering all the above referred facts, in my opinion, the
impugned order passed by the learned Additional Judge, Small Causes
Court, Nagpur, is unsustainable. The writ petition thus deserves to be
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allowed. In the result, the writ petition is allowed.
The order passed by the learned 2nd Additional Small
Causes Court, Nagpur, dated 02.02.2015 in Regular Civil Suit NO.
185/2007 on application (Exh.90) is quashed and set aside.
The writ petition is disposed of. Rule is made absolute
accordingly. No order as to costs.
Diwale
JUDGE
