Bombay High Court
Pradip Laxman Patil vs Ramanand Jaydeo Patil And Another on 24 June, 2016
Bench: S.P. Deshmukh
1 WP-10582.14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 10582 OF 2014
Pradeep Laxman Patil
Age 44 years, occup. Advocate,
R/o Balajipura, Amalner, .. Petitioner/orig.
Taluka Amalner, Dist. Jalgaon Defendant
versus
01 Ramanand Jaydeo Patil,
Age 60 years, occup. Business,
R/o Rambaug, Dhule Road,
Amalner, Taluka Amalner,
Dist. Jalgaon
02 Jagdish Ramanand Patil,
Age 29 years, occup. Business,
R/o Rambaug, Dhule Road,
Amalner, Taluka Amalner, .. Respondents/orig.
Dist. Jalgaon Plaintiffs
------
Mr. Girish S. Rane, Advocate for petitioner
Mr. B. R. Waramaa, Advocate for respondents
CORAM : SUNIL P. DESHMUKH, J.
DATE : 24th June, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard the parties
finally, by consent.
2. Petitioner-original defendant, purporting to be aggrieved
by order dated 18-10-2014 passed by Civil Judge, Senior
Division, Amalner, allowing amendments under Exhibit-63 filed
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by respondents-plaintiffs in special civil suit no.35 of 2013
seeking specific performance for agreement in respect of three
plots and for performance of certain other terms contained in the
agreement, is before this court.
3. As suit proceeded, some activities with reference to the
terms under the agreement appear to have been prosecuted
and plaintiffs had lodged examination-in-chief on affidavit.
Subsequently, it occurred to them that certain explanation by
way of abundant precaution would avoid further controversy and
procrastination of the matter and as such amendments had been
sought under Exhibit-63.
4. Learned counsel Mr. Rane refers to the pleadings by
respondents and contends that it cannot be said that they were
absolutely unaware of the permission being required for
constructing bridge by the authorities concerned while the suit
had been instituted. As such, after trial had commenced with
lodging of affidavit of examination-in-chief, an application
Exhibit-63 for amendments moved at the instance of
respondents ought not to have been entertained. He submits
that there is no whisper in the order impugned about any due
diligence being shown by respondents before making application
for amendments.
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5. Mr. Rane urges this court to consider the judgment in the
case of Vidyabai vs Padmalatha, reported in AIR 2009 SC 1433.
The case has been pressed into service to emphasize as to when
the trial could be deemed to have commenced. He, therefore,
submits that since the amendments sought have been after trial
has commenced and no due diligence was shown in seeking the
same, having regard to amended provisions of Civil Procedure
Code (Amendment) Act, 2002, the impugned order, in the
process, has been rendered untenable and should be quashed
and set aside.
6. Learned counsel Mr. Waramaa appearing on behalf of
respondents, combating aforesaid submissions, submits that the
amendments sought are nothing but clarification being given in
respect of transactions and the terms between the parties and
nothing new is being added nor the nature of the suit can be
said to have altered by way of the amendments. He further
submits that after the pleadings of petitioner, there had been
certain activities about seeking permission for construction from
concerned authorities and some correspondence had ensued
between the defendant and said authorities and having regard to
the same, amendments are sought. Activities by petitioner
indeed are subsequent to institution of suit by respondents. In
the circumstances, the question being raised about due diligence
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is not of such a significance which should sway circumstances in
favour of petitioner to decline the amendments sought.
7. Learned counsel for respondents refers to judgment in the
case of Abdul Rehman vs Mohd. Ruldu, reported in 2012 AIR SCW 5419.
According to him, the law with regard to amendments, to a large
extent, stands explained and under the same, the amendments
sought by moving application Exhibit-63 would be easily
accommodated.
8. He submits that in any case, amendments sought would
avoid unnecessary arguments and controversy over the matters
which already form part and parcel of the agreement and the
activities prosecuted by the petitioner being subsequent to suit,
the order impugned as has been passed by the learned judge
can seldom be faulted with on any count. He, therefore, submits
that the power exercised by the learned judge since being
discretionary, as such, there is very little scope for this court to
cause interference in the same, in its discretionary power.
9. Be that as it may, petition has been moved against grant
of amendments which cannot be said to be unrelated to dispute
between the parties and the court having regard to various
aspects has exercised discretion in favour of the amendments
sought. It would not be appropriate for this court to meddle
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with the exercise of power by the learned judge which cannot be
said to be in breach of following of judicial principles. The
petitioner, in any case, will have liberty to defend his case
against amendments, by filing amended written statement, if he
so desires.
10. Since it is contended that some inconvenience is being
caused to petitioner in the process of amendments, the same
can be taken care of by imposing costs. In the circumstances,
respondents to pay costs of Rs.10,000/- to the petitioner to be
deposited in the trial court within a period of four weeks from
the date of receipt of this order.
11. Writ petition stands disposed of. Rule stands discharged.
SUNIL P. DESHMUKH,
JUDGE
pnd
