Maharashtra Agro Industries ... vs Jaikisan Agro Service Center ...
2016 Latest Caselaw 2604 Bom

                                         1                   WP-5823.16.doc


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                         
                         BENCH AT AURANGABAD

                          WRIT PETITION NO. 5823 OF 2016




                                                 
     Maharashtra Agro Industries Development
     Corporation Limited,




                                                
     Regional Office, Godavari Complex,
     VIP Road, Nanded
     Through its Regional Manager,
     Shri. Vishwanath Ramchandra Dudhalkar
     Age: 56 years, Occ: Service,




                                       
     R/o. Nanded,
     Taluka and District: Nanded
                              ig                          ... Petitioner

              Versus
                            
     Jaikisan Agro Service Center
     Through its Proprietor
     Bapurao Rangrao Deshmukh
     Age: Major, Occ: Business,
     R/o. C/o. M/s. Jaikisan Krushi
      


     Seva Kendra, Hatta, Taluka Basmat,
     District Hingoli                                     ... Respondent
   



                                  .....
     Mr. Amit S. Savale, Advocate for petitioner
     Mr. P. N. Sonpethkar, Advocate for respondent





                                  .....


                                   CORAM :   SUNIL P. DESHMUKH, J.

DATE : 7th JUNE, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally

with consent of learned advocates for the parties.

2 WP-5823.16.doc

2. The petitioner, purportedly, aggrieved by order dated

12th April, 2016 upon application Exhibit-15 in Regular Civil

Appeal No. 140 of 2012, whereunder District Judge-1, Nanded

has allowed the request of present respondent seeking certain

amendment to appeal memo as contained in the application,

is before this court.

3. Learned counsel for the petitioner vehemently submits

that the grounds which are sought to be added under

amendment would not lie for the reason that those have no

basis in the pleadings of the defendant. In the circumstances,

the grounds which are sought to be taken up could not have

been allowed by the learned Judge.

4. Learned counsel further refers to the reasons as are

appearing under paragraph No.7 in the impugned order.

According to learned counsel, there is too much presumption

which has no basis of facts. The presumption being

entertained by the learned Judge is besides the pleadings. He,

therefore, submits that the reasons given under the

application and the impugned order are unsustainable.

5. Aforesaid arguments are countered by the learned

counsel for the respondent - caveator, referring to that the

3 WP-5823.16.doc

request has been made, is available in procedural rules,

particularly, Order XLI Rule 2 of the Code of Civil Procedure,

and the court has exercised the powers prescribed under the

same. It can not be said that there is any defect in exercise of

powers, arguments being advanced by appellant before this

court relate to the merits of the contention with regard to the

amendment. He submits that since the exercise of powers

cannot be faulted with and the factual position would not

change by allowing the amendments and no particular harm

can be said to be caused to the petitioner. He submits that

this is not a case, wherein indulgence be given to the

petitioner.

6. Learned counsel for the petitioner submits that the

amendment application has been moved in the Regular Civil

Appeal after the arguments were concluded and therefore, the

court ought to have been slow in consideration of the

application. The impugned order does not reflect upon this

respect. Taking stock of the situation, it appears that certain

grounds at belated stage are sought to be added in the memo

of appeal an exercise which appears to have been allowed by

the appellate court.

4 WP-5823.16.doc

7. In the circumstances, it would be open for the petitioner

to contest veracity, correctness and merits of the grounds

being urged under the amendment. For said purpose, an

opportunity will have to be given to the petitioner to advance

submissions in respect of the grounds taken under the

amendment, including their tenability.

8. In view of aforesaid observations, I am not inclined to

interfere with the order impugned in this writ petition.

9. Writ petition, as such, is not being entertained and

stands rejected with aforesaid observations. Rule discharged.

( SUNIL P. DESHMUKH, J. )

sms