Bombay High Court
M/S. Nanabhoy Jeejeebhoy Pvt. ... vs Mrs. Jaspal Balhar Basra And Ors on 21 February, 2022
Bench: Nitin W. Sambre
WP-103-21.doc
BDP-SPS-TAC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 103 OF 2021
M/S. NANABHOY JEEJEEBHOY PVT. LTD.
AND ANR. ....Petitioners.
Vs
SHANKAR FAKIRAPPA YELIGAR Respondent
WITH
WRIT PETITION NO. 1672 OF 2021
M/S. NANABHOY JEEJEEBHOY PVT. LTD.
AND ANR. ....Petitioners.
V/s
GURMIT SINGH DONGRA .... Respondent.
WITH
WRIT PETITION NO.1671 OF 2021
M/S. NANABHOY JEEJEEBHOY PVT. LTD.
AND ANR. ....Petitioners.
V/s
AJAB SINGH .... Respondent.
WITH
WRIT PETITION NO. 3666 OF 2021
M/S. NANABHOY JEEJEEBHOY PVT. LTD.
AND ANR. ....Petitioners.
V/s
MRS. JASPAL BALHAR BASRA & ORS ..... Respondents.
---
1/7
::: Uploaded on - 22/02/2022 ::: Downloaded on - 23/02/2022 03:20:07 :::
WP-103-21.doc
Mr. Vishal Kanade a/w Mr. Monil Punjab a/w Mr. Mohan G. Salian i/b
MGS Legal for the Petitioners.
Mr. Rushil Mehta a/w Mr. Raj Adhia a/w Ms. Nidhi Boriya for the
Respondent in Writ Petition No. 3666 of 2021 and in Writ Petition
No.1671 of 2021.
Mr. Girish B. Kedia a/w Mr. Kusharg Kedia for the Respondent in Writ
Petition No.1672 of 2021.
----
CORAM: NITIN W. SAMBRE, J.
DATE: FEBRUARY 21, 2022
P.C.:-
1] For the convenience, all these four Petitions are tagged and
heard finally by consent.
2] Impugned in the Petition is an order dated 28 th November, 2019
passed against the Petitioners/Plaintiffs, rejecting prayer for
amendment wherein correction in the description of the suit property
is disallowed.
3] Relying on the law laid down by the Apex Court in the matter of
Gurubaksh Singh and Others vs. Buta Singh and Another reported in
(2018) 6 SCC 567, Mr. Vishal Kandae, learned Counsel for the
Petitioners submitted that since nature of the suit claim is not changed
WP-103-21.doc
by the amendment, Petitioners are entitled for amendment with
imposition of reasonable conditions. He would claim that only
correction in description of the suit property was sought for before the
court below.
4] Prayer is strenuously opposed by the Counsel for the
Respondents/Defendants as, according to him, suit has travelled at an
advance stage, as the trial has already commenced. According to him,
Petitioners must demonstrate co-relation between the property's
description which is sought to be inserted by amendment and one
which is already mentioned in the plaint. He would claim that, on
earlier occasion, Petitioners' similar prayer was granted. However, in
the case in hand, there is no due diligence on the part of the
Petitioners/Plaintiffs.
5] Considered rival submissions.
6] The controversy in all these four Petitions can be narrowed down
to the extent of whether Petitioners/Plaintiffs can be granted
amendment to the extent of carrying out correction in the description
WP-103-21.doc
of the suit property. Admittedly, Petitioners are not seeking any other
amendment or insertion of any additional claim in relation to the
amended claim i.e. correction in the description of the suit property.
What is sought to be inserted is only correct description of the suit
property. If such a correction at present stage of the suit where
plaintiffs' affidavit of evidence is placed on record alongwith
documents is allowed, in my opinion, same will not cause any
prejudice or hardship to the Respondents/Defendants.
7] The controversy referred above is squarely covered by the
judgment of the Apex Court in the case of Gurubaksh Singh cited
supra. Paras 5 and 6 of the said judgment are worth to be relied upon,
which read thus:-
"5. In the present case the record of Civil Suit No.195 of 1968
in which ex parte decree was passed on 30.06.1969 is not
traceable. In the circumstances, there could possibly be some
inability in obtaining correct particulars well in time on part of
the appellants. At the time when the application for amendment
was preferred, only two official witnesses were examined. The
nature of amendment as proposed neither changes the
character and nature of the suit nor does it introduce any fresh
ground. The High Court itself was conscious that the
WP-103-21.doc
amendment would not change the nature of the suit. In the
given circumstances, in our view, the amendment ought to have
been allowed. In any case it could not have caused any
prejudice to the defendants."
"6. While allowing amendment of plaint, after amendment of
2002, this Court in circumstances similar to the present case, in
Abdul Rehman vs. Mohd. Ruldu [(2012) 11 SCC 341 : (2013) 1
SCC (Civ) 314], had observed: (SCC pp.344-45 para 11)
"11. The original provision was deleted by Amendment
Act 46 of 1999, however, it has again been restored by
Amendment Act 22 of 2002 but with an added proviso
to prevent application for amendment being allowed
after the trial has commenced, unless the court comes to
the conclusion that in spite of due diligence, the party
could not have raised the matter before the
commencement of trial. The above proviso, to some
extent, curtails absolute discretion to allow amendment
at any stage. At present, if application is filed after
commencement of trial, it has to be shown that in spite
of due diligence, it could not have been sought earlier.
The object of the rule is that courts should try the merits
of the case that come before them and should,
consequently, allow all amendments that may be
necessary for determining the real question in
controversy between the parties provided it does not
cause injustice or prejudice to the other side. This Court,
WP-103-21.doc
in a series of decisions has held that the power to allow
the amendment is wide and can be exercised at any
stage of the proceeding in the interest of justice. The
main purpose of allowing the amendment is to minimise
the litigation and the plea that the relief sought by way
of amendment was barred by time is to be considered in
the light of the facts and circumstances of each case. The
above principles have been reiterated by this Court in J.
Samuel v. Gattu Mahesh [(2012) 2 SCC 300: (2012) 1
SCC (Civ) 801] and Rameshkumar Agarwal v. Rajmala
Exports (P) Ltd. [(2012) 5 SCC 337 : (2012) 3 SCC
(Civ) 92]. Keeping the above principles in mind, let us
consider whether the appellants have made out a case
for amendment."
8] In the aforesaid backdrop the impugned order dated 28 th
November, 2019 passed in all these four Petitions are hereby quashed
and set aside. Chamber Summons No.535 of 2018 in Suit No. 7580 of
2002 (High Court Suit No.1481 of 2002), Chamber Summons No.533
of 2018 in Suit No.7578 of 2002 (High Court Suit No.1479 of 2002),
Chamber Summons No.532 of 2018 in Suit No.7577 of 2002 (High
Court Suit No.1478 of 2002) and Chamber Summons No.531 of 2018
in Suit No.7576 of 2002 (High Court Suit No.1477 of 2002) are
allowed, subject to the Petitioners depositing costs of Rs 1 lakh
WP-103-21.doc
(Rupees one lakh only) in each of the Petitions in suits pending before
the court below within a period of six weeks, subject to which
amendment be permitted by the Trial Court.
9] Costs of Rs 1 lakh (Rupees one lakh only), in my opinion, in each
of these Petitions is justified having regard to the fact that suit is
pending since 2002 and trial in the suit has already commenced. The
amendment which is granted is based on facts which were in
existence in 2013. Eearlier, Chamber Summons to the extent of other
amendment was already granted by the Court below at which point of
time, Petitioners were negligent in seeking present relief of
amendment.
10] In case if the costs is not deposited, Court shall proceed ahead
with the suit as if order rejecting amendment is confirmed by this
Court. In case if costs is deposited, needless to clarify that
Respondents/Defendants shall be entitled to withdraw the same.
11] All these four Petitions are accordingly allowed in above terms.
( NITIN W. SAMBRE, J. )
