Vikram Thorat And Ors vs Vijay Daulatsing Madan
2022 Latest Caselaw 11617 Bom

                                                                        33-WP-13058-2022.doc
           Arjun



                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION

                                       WRIT PETITION NO.13058 OF 2022
         Digitally
         signed by
         ARJUN
         VITTHAL
                      Shri. Vikram Thorat & Ors.                    ...Petitioners
ARJUN
VITTHAL  KUDHEKAR

                           Versus
KUDHEKAR Date:
         2022.11.17
         10:31:48
         +0530


                      Shri. Vijay Daulatsing Madan                  ...Respondent

                      Mr. Ajay Basutkar, for the Petitioners.
                      Mr. Saurabh Bhutala a/w Shagufta Patel, Mr. Harshad
                      Bhadbhade, for the Respondent.
                      [




                                              CORAM : MADHAV J. JAMDAR, J.

DATED : 15th NOVEMBER 2022

P.C. :

1. Heard learned counsel for the parties.

2. The impugned order in the present Petition is order

dated 25th July, 2022 passed by learned Ad-hoc District

Judge-4, Pune below Exh. 73 in Regular Civil Appeal No.

427 of 2017. Application bearing Exh. 73 has been filed in

Regular Civil Appeal No. 427 of 2017 seeking amendment

of appeal memo. Learned Ad-hoc District Judge-4, Pune

although rejected Exh. 73 application , allowed appellants

33-WP-13058-2022.doc Arjun

to argue on the basis of ground Nos. 94 to 113 as set out in

application Exh. 73, in addition to the grounds mentioned

in the appeal memo.

3. Learned counsel appearing for the Petitioners has

relied on the judgment of this Court reported in (2015) 6

ALL MR 330 in the matter between Shamrao Balwantrao

Kedar Vs. Suman Balu Thorat & Ors. and the judgment of

the Supreme Court reported in (2010) 4 SCC 518 in the

matter between State of Maharashtra Vs. Hindustan

Construction Co. Ltd. In the said judgment, it has been held

that, Order XLI Rule 2 of the Code of Civil Procedure, 1908,

leave no manner of doubt that the Appellate Court has

power to grant leave to amend the appeal memo. Learned

counsel appearing for the Petitioners has placed reliance

on another judgment of the Supreme Court reported in

(1982) 3 SCC 408 in the matter between Harcharan Vs.

State of Haryana wherein the Apex Court has held that the

memo of appeal stands on par with the plaint.

4. By the impugned order, the learned Appellate Court

33-WP-13058-2022.doc Arjun

has virtually allowed the amendment application by

granting permission to the Petitioners to argue on the

basis of the ground Nos. 94 to 113 as set out in the

application Exh. 73. If the said ground Nos. 94 to 113 are

allowed to be incorporated in the appeal memo, there will

be more clarity and there will not be any prejudice to the

Respondent. In fact, provisions of Order XLI of Rule 2

specifically contemplates that party affected had sufficient

opportunity of contesting the case on the grounds sought

to be incorporated by amendment.

5. In view of this, the impugned order dated 25 th July,

2022 passed by learned Ad-hoc District Judge-4, Pune in

Regular Civil Appeal No. 427 of 2017 is modified by

granting application Exh. 73. Amendment to be carried out

within a period of two weeks from today.

6. Writ Petition is disposed of in above terms with no

order as to costs.

[MADHAV J. JAMDAR, J.]