Bombay High Court
Shri Laxmi Saraswati Kalanka ... vs Abhinandan Snacks Pvt. Ltd., ... on 28 July, 2017
Bench: I.K. Jain
1 280717 Judg. wp 5737.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.5736 of 2016
Hai Hai Vanshiya Kshatriya Kasar Samaj,
A public trust, registered under
the Bombay Public Trust Act, having its registered office
at House No.179, Opp. City Post Office, Itwari, Nagpur,
through its Secretary, Shri Sunil Gorelalji Lakhete,
aged 56 years, Occ.-Teacher, R/o.-99
New Gyaneshwar Nagar, Manewada Road,
Nagpur. .... Petitioner.
-Versus-
Abhinandan Snacks Pvt. Ltd.
A company registered under the Companies Act, 1956,
operating at Near City Post Office, Itwari, Nagpur,
through its -
1] Managing Director,
Shri Rajendra Kumar Agrawal,
Major, Occ.- Business,
2] Director,
Smt. Premlata Rajendra Agrawal,
Major, Occ.-Business,
Both R/o.-918, Deshpande Layout,
Wardhaman Nagar, Nagpur-440008. .... Respondents.
With
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Writ Petition No.5737 of 2016
Shri Laxmi Saraswati Kalanka Deosthan,
A public trust, registered under the Bombay Public Trust Act,
having its registered office at House No.179,
Opp. City Post Office, Itwari, Nagpur,
through its Secretary, Shri Sunil Gorelalji Lakhete,
aged 56 years, Occ.-Teacher, R/o.-99
New Dnyaneshwar Nagar, Manewada Road,
Nagpur. .... Petitioner.
-Versus-
Abhinandan Snacks Pvt. Ltd.
A company registered under the Companies Act, 1956,
operating at Near City Post Office, Itwari, Nagpur,
through its -
1] Managing Director,
Shri Rajendra Kumar Agrawal,
Major, Occ.- Business,
2] Director,
Smt. Premlata Rajendra Agrawal,
Major, Occ.-Business,
Both R/o,-918, Deshpande Layout,
Wardhaman Nagar, Nagpur-440008. .... Respondents.
-------------------------------------------------------------------------------------
Mr. Anurag Gharote, Counsel for petitioner.
Mr. S.V. Purohit, Counsel for resp. nos. 1 and 2.
-------------------------------------------------------------------------------------
Coram :
KUM. INDIRA JAIN, . J
th
Dated : 28 July, 2017.
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ORAL JUDGMENT
Rule. Rule made returnable forthwith. Heard finally with
the consent of learned Counsel for the parties.
2] The petitioners are plaintiffs in Regular Civil Suit Nos.230
of 2011 and 231 of 2011 instituted before the Small Causes
Court, Nagpur for eviction and possession against the
respondents.
3] The challenge in this petition is to the order dated
nd
30-07-2016 passed by the learned 2 Additional Judge, Small
Causes Court, Nagpur in Regular Civil Suit No.230 of 2011 and
on 23-08-2016 by the learned Principal District Judge, Nagpur
in Misc. Civil Appeal No.193 of 2016 thereby allowing
application (Exhibit-57) for amendment in written statement
under Order VI Rule 17 of the Code of Civil Procedure.
4] The proposed amendment was sought by defendants on
the ground that suit property is within the jurisdiction of slum
area and since plaintiffs have not obtained prior permission
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from Competent Authority for institution of suit, the suit cannot
be entertained, tried and decided by the Small Causes Court.
5] It is not in dispute that application for amendment was
filed on 10-06-2016 at the stage of cross examination of
plaintiffs' witness. The learned Counsel for petitioners
submitted that in such a situation proviso to Order VI Rule 17 of
the Code would be attracted and defendants having failed to
demonstrate due diligence, application for amendment ought to
have been rejected by the Courts below. According to learned
Counsel defendants maintained silence for about five years and
all of a sudden raised plea regarding maintainability of suit and
the jurisdiction of the Court at the stage of cross examination of
plaintiffs. The submission is that after commencement of trial,
Court should be slow in allowing amendment and as
defendants have not mentioned any reason in the application
for delay, trial Court and appellate Court wrongly held that
amendment in written statement can be allowed after the
commencement of trial. On the scope and ambit of proviso to
Order VI Rule 17 of the Code, learned Counsel for petitioner
placed reliance on the following judgments :-
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(a) Ajendraprasadji N. Pande and another v.
Swami Keshavprakeshdasji N. and
others [AIR 2007 SC 806].
(b) Vidyabai and others v. Padmalatha and
another [AIR 2009 SC 1433].
(c) Chhabubai Haribhau Badakh v. S.H.
Khaatod and Sons and another
[2009 (5) Bom.C.R. 311].
(d) Jayashree Subhash Kalbande and
another v. Shri Bhaurao Nagorao Derkar
and others [2015 (1) Bom.C.R. 403].
6] Per contra, learned Counsel for respondents submitted
that in application for amendment defendants have specifically
mentioned that they were not aware that property was situated
in slum area and as soon as they came to know about the same
they moved an application for amendment. The learned
Counsel submitted that proposed amendment goes to the root
of the matter and no prejudice will be caused to plaintiffs if
amendment is allowed.
7] To substantiate the contention learned Counsel placed
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reliance on the decisions of the Hon'ble Supreme Court in
Revajeetu Builders and Developers v. Narayanaswamy and
Sons and others [(2009) 10 SCC 82] and Abdul Rehman and
another v. Mohd. Ruldu and others [(2012) 11 SCC 341].
8] With the assistance of the learned Counsel for parties this
Court has perused the impugned orders. It is not in dispute
that amendment application came to be filed at the stage of
cross examination of plaintiffs' witness. Proviso to Order VI
Rule 17 of the Code would be attracted in such a case. Under
the said proviso no application for amendment shall be allowed
after the trial has commenced unless party seeking amendment
shows due diligence.
9] It is significant to note that proviso to Order VI Rule 17 of
Code puts a rider in allowing amendment in case of absence of
due diligence. The proviso was introduced to shorten the
litigation and speed up the disposal of suit. This however does
not put total embargo in allowing the application. The law is
settled insofar as applicability of proviso to Order VI Rule 17 of
the Code is concerned.
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10] In the case on hand defendant has specifically stated that
he was not aware about the fact that the suit property was
situated in slum area and soon the fact struck to defendant he
filed application (Exhibit-57).
11] As stated above, proposed amendment relates to the
jurisdiction of Court to entertain, try and decide the dispute
between the parties. It does not change the nature of defence
raised by defendant in written statement. On the contrary, the
same is essential as it goes to the root and pertains to
competency of the Court to entertain, try and decide the
dispute.
12] In the above premise, this Court does not find any fault in
the concurrent findings recorded by the trial Court and the
appellate Court. As such no interference is warranted in writ
jurisdiction. Hence, the following order :-
O r d e r
(i) Writ Petition Nos.5736 of 2016 and 5737 of 2016
are dismissed.
(ii) Rule is discharged. No costs.
JUDGE
Deshmukh
