Bombay High Court
M/S Gajanan Construction Arvi ... vs Krushi Utpanna Bazar Samiti, Arvi ... on 4 October, 2023
Bench: Avinash G. Gharote
2023:BHC-NAG:14449
wp 3847.19. 1/3 4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.3847/2019
M/s Gajanan Construction, Arvi V Krushi Utpanna Bazar Samiti, Arvi
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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.A. Dharaskar, Adv for petitioner.
Mr. S.S. Ghate, Adv for respondent.
CORAM : AVINASH G GHAROTE J.
DATE : 04-10-2023
Heard Mr. Dharaskar, learned Counsel for the
petitioner and Mr. Ghate, learned Counsel for the
respondent.
2. The petition challenges the order dated
26-03-2019 passed by the learned trial Court allowing the
application for amendment of the plaint filed at a stage when
the affidavit in lieu of evidence of the plaintiff already stood
filed, however the further chief is yet to be recorded.
Mr Dharaskar, learned Counsel for the petitioner relying
upon the judgment in the case of Mahadeo Vs Balaji and
others (2012 SCC Online 1283) submits, that since the trial
has commenced the amendment ought not to have been
allowed. He, therefore, submits that the impugned order is
liable to be quashed and set aside and the application be
dismissed.
3. Mr. Ghate, learned Counsel for the respondent,
wp 3847.19. 2/3 4
by inviting my attention to the proposed amendment submits
that it is merely clarificatory in nature and does not change
the nature of the suit as is contended. He submits that the
proviso, cannot be interpreted in a manner, to disbar
clarifications, which is not the purport and import of the
proviso to Order 6 Rule 17 of the Code of Civil Procedure
(CPC).
4. A look at the proposed amendment indicates
that it is in two parts; the first part merely seeks to correct the
month in para 1 of the plaint from August,2011 to October,
2011, which would indicate, that it is merely clarificatory in
nature and does not have any effect of changing the nature of
the suit. The second part of the amendment indicates
averments to be inserted by para 1(A) which also seeks to
clarify the position as already exciting in the plaint. It would
be therefore apparent that the proposed amendment is merely
clarificatory in nature to the averments already existing on
record and do not have the effect of changing the nature of of
the suit as is contended.
5. The proviso to Order 6 Rule 17 of the CPC has
to be construed in a manner, which would achieve a balance,
regarding bringing something on record consequent to the
commencement of trial in light of the language of the proviso,
and in view of the basic purpose of Order 6 Rule 17 of the
CPC, which contemplates permitting to bring on record
something which is necessary for determining the real
question in controversy between the parties by way of
wp 3847.19. 3/3 4
amendment. The provision cannot be read in a manner so as
to destroy the very purpose and object of Order 6 Rule 17 of
the CPC.
6. In that view of the matter, since the proposed
amendment is merely clarificatory in nature, I do not see any
reason to interfere in the impugned order, the petition is
dismissed. No costs.
7. Needless to say that the petitioner shall be free
to make consequential amendment in the written statement
in view of the amendment allowed by the impugned order.
JUDGE
Deshmukh
Signed by: Mr. S.Deshmukh
Designation: PS To Honourable Judge
Date: 05/10/2023 09:49:01
