Masood Heptullahbhai Bombaywala vs Umesh Parasmal Kothari
2016 Latest Caselaw 3570 Bom

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                                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                     NAGPUR BENCH : NAGPUR




                                                                                                                                                                             
                                                              WRIT PETITION NO.1662/2016




                                                                                                                                  
    Masood Heptullahbhai Bombaywala,
    aged about 40 Yrs., Occu. Businessman, 
    R/o Madhuban Colony, Dhamangaon
    Road, Tq. and Distt. Yavatmal.                                                                                                                             ..Petitioner.




                                                                                                                                 
                 ..VS..

    Umesh Parasmal Kothari, 
    aged about 45 Yrs., Occu. Businessman, 
    R/o Peshwe Plot, Civil Lines, 




                                                                                                       
    Yavatmal, Tq. and Dist. Yavatmal.                                                                                                                              ..Respondent.
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                 Shri Firdos Mirza, Advocate for the petitioner.    
                 Shri A.A. Naik, Advocate for the respondent. 
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                                                                     CORAM :  Z.A.HAQ, J.

DATED : 4.7.2016.

ORAL JUDGMENT

1. Heard Shri F.T. Mirza, Advocate for the petitioner - original plaintiff and Shri

A.A. Naik, Advocate for the respondent - original defendant.

2. Rule. Rule made returnable forthwith.

3. The petitioner - plaintiff has filed the civil suit praying for decree for rendition

of accounts, for declaration that the sale-deed dated 22 nd December, 2006 is null and

void, for declaration that the plaintiff continues to be partner of M/s. M.K. Motors

and for declaration that the memorandum of understanding dated 19 th December,

2006 is never executed by the plaintiff and is sham, void and null. The plaintiff has

also prayed for other reliefs.

The trial proceeded and after the plaintiff filed affidavit in lieu of examination-

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in-chief, an application (Exh. No.46) under Order 6 Rule 17 is filed by the plaintiff

seeking permission to amend the plaint. By this amendment application, the plaintiff

sought permission to incorporate several paragraphs in the body of plaint to elaborate

pleadings made in the plaint earlier. The plaintiff further sought to incorporate the

prayer seeking decree for damages. The learned trial Judge, by the impugned order,

has rejected this application.

The learned Advocate for the petitioner, on instructions, has submitted that the

plaintiff is not pressing the proposed prayer for damages as made in the amendment

application and the plaintiff would agitate the claim in separate suit.

As far as the other proposed amendment is concerned, in my view, the same

can be permitted as the defendant will not be put to any prejudice if the proposed

amendment is permitted.

4. Hence, the following order:

    (i)      The impugned order is set aside.
    (ii)     The application (Exh. No.46) is partly allowed.

(iii) The plaintiff is permitted to incorporate paragraph Nos.8A to 8G, 8I and 8J of the proposed amendment application in the plaint.

(iv) The prayer of the plaintiff for permission to incorporate paragraph Nos.8H, 8K and prayer clauses 7-A, 7-B, 7-C and 7-D of amendment application, is rejected.

(v) The respondent would be at liberty to make claim for damages in separate civil suit, if so advised.

(vi) The petition is allowed in the above terms.

(vii) In the circumstances, the parties to bear their own costs.

JUDGE Tambaskar.