Bombay High Court
Moreshwar S/O Nathuji Pohakar And ... vs Krushna S/O Nathuji Bawane And ... on 21 September, 2022
Bench: Manish Pitale
1/5 909-WP 7590.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 7590 OF 2019
Moreshwar s/o Nathuji Pohakar and others
vs.
Krushna s/o Nathuji Bawane and another
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. P. D. Randive, Advocate for petitioners.
CORAM : MANISH PITALE J.
DATE : 21/09/2022
By this petition, the petitioners i.e.
original plaintiffs have challenged order dated
31/08/2019, passed by the Small Causes Court,
Nagpur whereby an application seeking amendment
of plaint at Exh.36 was rejected.
2. The petitioners have filed suit for eviction
against the respondents, inter alia, on the ground of
bona fide need. According to the learned counsel for
the petitioners, the said amendments ought to have
been allowed, for the reason that it was nothing but
an attempt on the part of the petitioners to elaborate
pleadings already on record pertaining to the aspect
of bona fide need.
KOLHE
2/5 909-WP 7590.2019
3. A perusal of the impugned order shows
that the application has been rejected primarily on
the ground that trial has already commenced and that
the proviso to Order 6 Rule 17 of the Code of Civil
Procedure,1908(CPC) operated against the
petitioners, particularly because they had failed to
show due diligence in moving the application before
the trial commenced.
4. The learned counsel for the petitioners
submits that in terms of the law that has now been
clarified by the Hon'ble Supreme Court and this Court
in various judgments, the application for amendment
ought to have been allowed.
5. This Court issued notice in the present
writ petition on 18/11/2019, and granted interim
relief. The respondents have been served and despite
repeated opportunities granted to them, they have
chosen not to appear before this Court to contest the
present writ petition.
6. This Court has perused the material on
record and considered the submissions made on
behalf of the petitioners. The Hon'ble Supreme Court
in the case of Rewajeetu Builders and Developers vs.
Narayanswamy and Sons and others; 2009 (10) SCC
KOLHE
3/5 909-WP 7590.2019
84, deliberated upon the effect of introduction of
proviso to Order 6 Rule 17 of the CPC, in order to
examine whether applications moved for amendment
after commencement of trial could be considered and
in what manner and in what circumstances such
applications could be allowed. The approach to be
adopted by Courts in such circumstances was
deliberated upon and specified by the Supreme Court
in the aforesaid case. In paragraph 63 of the said
judgment, the Supreme Court enumerated the factors
to be taken into consideration while dealing with the
application for amendment and it was held as
follows:-
"Factors to be taken into consideration while
dealing with applications for amendments
63. On critically analysing both the English
and Indian cases, some basic principles emerge
which ought to be taken into consideration while
allowing or rejecting the application for
amendment:
(1) whether the amendment sought is imperative
for proper and effective adjudication of the case;
(2) whether the application for amendment is bona
fide or mala fide;
(3) the amendment should not cause such
prejudice to the other side which cannot be
compensated adequately in terms of money;
KOLHE
4/5 909-WP 7590.2019
(4) refusing amendment would in fact lead to
injustice or lead to multiple litigation;
(5) whether the proposed amendment
constitutionally or fundamentally changes the
nature and character of the case; and
(6) as a general rule, the court should decline
amendments if a fresh suit on the amended claims
would be barred by limitation on the date of
application.
These are some of the important factors which may
be kept in mind while dealing with application filed
under Order 6 Rule 17. These are only illustrative
and not exhaustive."
7. In this context, the learned counsel
appearing for the petitioners is also justified in relying
upon judgment of this Court in the case of Anil s/o
Ramsing Bilawar vs. Anita w/o Gopal Kadam
(Judgment and order dated 06/08/2021, passed in
Writ Petition No.7721 of 2019), wherein this Court
has taken a review of number of judgments
pertaining to the aforesaid aspect of the matter and it
has been held that where the nature of the suit does
not undergo a change and the amendment is found
necessary for decision on the real questions that arise
between the parties, the amendment ought to be
allowed.
KOLHE
5/5 909-WP 7590.2019
8. In view of the above, this Court is of the
opinion that the Court below erred in rejecting the
application filed on behalf of the petitioners and that
in the interest of justice, the amendment ought to
have been allowed, particularly for the reason that
introducing the proposed amendment would not only
elaborate the aspect of bona fide need projected on
behalf of the petitioner, but it would certainly assist
the Court below in deciding the real questions in
controversy between the parties.
9. In view of the above, the Writ Petition is
allowed.
10. The impugned order passed by the Court
below is quashed and set aside.
11. The application for amendment at
Exh.36 is allowed in terms of the prayers made
therein. The amendment be carried out within three
weeks from today.
12. The Court below shall make an
endeavour to expeditiously dispose of the suit.
JUDGE
Digitally signed byRAVIKANT
CHANDRAKANT KOLHE
Signing Date:23.09.2022
17:19
KOLHE
