Union Bank Of India vs Gokhale Education Society
2021 Latest Caselaw 3135 Bom

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BDP-SPS


 Bharat
 D.
 Pandit                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION
 Digitally signed
 by Bharat D.
 Pandit
 Date:
 2021.02.23



                                     WRIT PETITION (ST) NO. 2171 OF 2020
 11:27:20 +0530




                    Union Bank of India,
                    Mumbai                                           ..... Petitioner.
                          V/s
                    Gokhale Education Society
                    Through its Authorized Secretary
                    Dr. M.S. Gosavi                                  ...... Respondent.
                    ----
                    Mr. Satyajeet Dighe for the Petitioner.
                    Mr. Ajinkya Jaibhave for the Respondent.
                    -----


                                         CORAM: NITIN W. SAMBRE, J.

                                         DATE:      FEBRUARY 17, 2021

                    P.C.:-

                    1]       This Petition is by Defendant to the Special Civil Suit No.244 of

2015. Respondent/Trust initiated aforesaid suit for possession,

compensation and other reliefs based on its title to the suit property.

Respondent/Trust registered under the Bombay Public Trusts Act has

initiated the suit under the authorization of its Secretary.

2] In the said suit, Respondent/Plaintiff moved an application-

Exhibit-48 for amendment of plaint under Order 6 Rule 17 of CPC,

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thereby seeking permission to add trustees of the Plaintiff/Trust in the

cause title.

3] The said application came to be moved on 17/10/2019, which

came to be allowed after resistance shown by the Petitioner on

9/1/2020 vide order passed below Exhibit-48.

4] Submissions of learned Counsel for the Petitioner are, there is

serious defect in the suit initiated by the Respondent/Plaintiff as all

the trustees of Plaintiff ought to have been impleaded as Plaintiffs with

the Trust. According to him, during cross examination of the witness

who deposed on behalf of the Plaintiff, he admitted about non-

impleadment of trustees who are now sought to be added. Not only

that, it is claimed that the said witness has given admission that he is

not aware as to who has signed the plaint or Resolution before filing of

the suit. As such, submissions are, by impleading trustees, a serious

lacuna is sought to be covered.

5] While countering the aforesaid submissions and supporting the

order impugned, the learned Counsel for the Respondent/Plaintiff

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would urge that amendment which is germane to the cause to be

decided in the suit can be allowed at any stage of the proceedings.

According to him, the Court below was justified in allowing the

application as costs is saddled on the Respondent/Plaintiff. As such,

according to him, Petition is liable to be rejected.

6] The proposition of law as is sought to be canvassed by the

Counsel for the Petitioner/Defendant is, in case of a suit initiated by

the Public Trust in relation to Trust's property, trustees should have

been added as Plaintiffs cannot be a bone of contention. This Court is

required to be sensitive to the fact that such a serious lacuna on the

part of the Respondent/Plaintiff time and again was brought to the

notice of the Respondent/Plaintiff by the Defendant, either through

evidence or even before that by raising objection to the maintainability

of the suit.

7] The suit is now fixed for final arguments and at such a stage by

permitting the Respondent/Plaintiff to cure a serious lacuna by

impleading trustees in the cause title as Plaintiffs, would cause serious

prejudice to the Petitioner/Defendant. It is rightly claimed by the

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Petitioner that though the amendment in the interest of justice can be

allowed at any stage of the proceedings so as to cater the cause of

justice, however, in the facts of the present case, it can be noticed that

Respondent/Plaintiff though was put to notice about the aforesaid

serious lacuna in the Plaint has not taken note of the same by

amending the plaint at appropriate stage of the proceedings and at

the fag end of the suit proceedings was permitted by the Trial Court in

its discretion to amend the suit, which, of-course is not permissible in

law.

8] The reliance placed by the learned Counsel for the Petitioner on

the judgment of the Apex Court in the matter of Arun Pahwa vs. Mrs.

Renu Chaudhary reported in 2019 (3) ADR 244 will be of hardly any

assistance as it cannot be termed in the facts of the case that there

was error inadvertent in drafting of the suit as there is no incorrect

description of the Plaintiffs. Rather Plaintiffs who should have been

necessarily joined in the suit, were not impleaded in spite of the

objection of the Petitioner. As such, said judgment will be of hardly

any support to the Respondent. Seeking correction in the pleadings is

altogether different than impleadment of new Plaintiffs to the suit.

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9] In the aforesaid backdrop, in my opinion, Court below has

committed an error in granting amendment. Rather, Court has

exceeded its jurisdiction in exercising discretion in favour of the

Respondent/Plaintiff. That being so, order impugned passed below

Exhibit-48 on 9/1/2020 in Special Civil Suit No.244 of 2015 is hereby

quashed and set aside. Application-Exhibit-48 stands rejected.

10] Petition stands allowed in the above terms. Trial Court is

directed to proceed with the suit.

( NITIN W. SAMBRE, J. )