[Cites 6, Cited by 0]
Bombay High Court
Sameer Jai Hiremath And Anr vs Baba Nilkantha Kalyani And Ors on 15 December, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:55066
WP-12416-2025.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12416 OF 2025
Sameer Jai Hiremath and Anr. ..Petitioners
Versus
Baba Neelkanth Kalyani and Ors. ...Respondents
Mr. Janak Dwarkadas, Sr. Advocate with Mr. Rahul Dwarkadas, Ms.
Sukhada Wagle, Ms. Shireen Mistri i/by RJD and Partners, for
Petitioners.
Mr. Simil Purohit, Sr. Advocate with Mr. Mayur Khandeparkar, Mr.
Yash Chokshi, Ms. Kanika Sharma i/by Khaitan and Co., for
Respondent No.1.
Mr. Rohan Rajadhyaksha with Ms. Deepti Prabhu, Mr. Rajveer veera
i/by AZB and Partners, for Respondent No.3.
CORAM: N. J. JAMADAR, J.
RESERVED ON : 8 DECEMBER 2025
PRONOUNCED ON : 15 DECEMBER 2025
JUDGMENT:
1. Rule. Rule made returnable forthwith and, with the consent of
the learned Counsel for the parties, heard finally.
2. By this Petition under Article 227 of the Constitution of India, the
Petitioners-Plaintiffs takes exception to an order dated 21 st August 2025
passed by the learned Civil Judge, Pune, whereby an Application
preferred by the Plaintiffs for amendment in the Plaint under the
provisions of Order VI Rule 17 of the Code of Civil Procedure, 1908 ("the
Code") came to be partly rejected.
3. Shorn of superfluities, the background facts can be stated as
under:
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3.1 The Plaintiffs claim to be the coparceners in respect of the
joint family property of two HUFs, Annappa N Kalyani ("ANK") and
Nilkanth A Kalyani ("NAK"). The HUFs consist of the Plaintiffs and
Defendant Nos. 1 to 6. Babasaheb Neelkanth Kalyani (D1) is the son of
NAK. Gaurishankar N. Kalyani (D3) is another son of NAK. Sugandha
(D6) is the daughter of NAK. Plaintiffs are the children of Sugandha
(D6). Amit (D2) is the son of Babasaheb N. Kalyani (D1), and Sheetal
Gaurishankar Kalyani and Viraj Gaurishankar Kalyani (D4 and D5) are
the children of Gaurishankar N. Kalyani (D3).
3.2 The Plaintiffs instituted a Suit seeking inter alia partition of
joint family properties and separate possession of their share therein.
The Plaintiffs also sought a declaration that the assets listed at
Annexures "A" to "E" to the Plaint as well as the properties which may
be discovered / disclosed, during the course of the Suit, are the joint
family properties belonging to Kalyani family HUFs. The Plaintiffs had
expressly reserved the right to include such properties and assets as the
Suit was instituted on the basis of limited knowledge which the
Plaintiffs then had about the properties and assets of Kalyani family
HUFs.
3.3 The Plaintiffs filed an Application for amendment in the Plaint
asserting inter alia that the properties, business, assets and funds which
have been discovered by the Plaintiffs be brought in the hotchpotch by
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substituting the Annexures "A", "B" and "E" with the Annexures "A", "B"
and "E" appended to the Application, enumerating those properties,
business, assets and funds. The Plaintiffs also sought to amend
paragraph 40 of the Plaint to seek injunctive reliefs during the pendency
of the Suit including but not limited to exercise of any voting rights in
respect of the shares of the companies which were acquired from
funds/nucleus of the family HUFs. Accordingly, two interim prayer
clauses (H1) and (H2) were sought to be added.
3.4 The Defendant Nos. 1 and 3 resisted the Application. By the
impugned order, the learned Civil Judge was persuaded to allow the
Application to the extent of prayer clause (a) therein, i.e., substitution
of Annexure "A", "B" and "E" in place of Annexure "A", "B" and "E"
originally annexed to the Plaint, comprising of the properties, business,
assets and funds allegedly subsequently discovered.
3.5 However, the Application came to be rejected to the extent of
prayer clauses (b) and (c) whereby the Plaintiffs principally sought a
restraint against the exercise of voting rights in respect of the shares
allegedly acquired from the funds/nucleus of the family HUFs.
3.6 The learned Civil Judge was of the view that no cogent and
sufficient material was brought by the Plaintiffs to sustain the said
prayers. In view of the provisions contained in Section 47 and 430 of
the Companies Act, 2013, the Plaintiffs could agitate the said matter
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before the appropriate forum and, even in the said Suit, if at later stage
of the trial the Plaintiffs succeeded in bringing on record sufficient
material. The proposed amendment in terms of prayer clauses (b) and
(c), in the view of the learned Civil Judge, would increase the
complexity in the Suit and give rise to complex issues.
3.7 Being aggrieved, the Plaintiffs have invoked the writ
jurisdiction.
4. I have heard Mr. Janak Dwarkadas, the learned Senior Advocate
for the Petitioners, Mr. Simil Purohit, the learned Senior Advocate for
the Respondent No.1, and Mr. Rohan Rajhyadaksha, the learned
Counsel for the Respondent No.3. With the assistance of the learned
Counsel for the parties, I have perused the material on record.
5. Mr. Janak Dwarkadas, the learned Senior Advocate for the
Petitioners, would urge that the learned Civil Judge committed a
manifest error in rejecting the Application for amendment by delving
into the merits of the matter sought to be introduced by way of
amendment. In the process, the learned Civil Judge lost sight of the
cardinal principle that at the stage of consideration of an application for
amendment in the pleadings, the merits of the proposed amendment
are not required to be taken into account. As the learned Civil Judge
approached the matter from an incorrect perspective, the order stood
vitiated, submitted Mr. Dwarkadas.
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6. As against this, Mr. Simil Purohit, the learned Senior Advocate,
for the Respondent No.1, supported the impugned order. It was
submitted that by the proposed amendments, which did not find favour
with the learned Civil Judge, the Plaintiffs intended to add interim
prayers. The Plaintiffs had filed an Application for temporary injunction.
The Plaintiffs could have preferred another Application seeking interim
reliefs. However, there was no justifiable reason to add interim reliefs in
the Suit. In any event, the Civil Court has no jurisdiction to entertain a
Suit seeking restraint on the exercise of voting rights. The National
Company Law Tribunal has exclusive jurisdiction over the said matter.
Therefore, when the matter was ex-facie beyond the jurisdiction of the
Civil Court, the learned Civil Judge was justified in rejecting the
Application for amendment to that extent.
7. Mr. Rohan Rajyadhaksha, the learned Counsel for the Respondent
No.3, submitted that to the extent of the inclusion of the properties,
assets, business and funds, in the suit property, the Defendant No. 3's
position was that there were other properties than the ones sought to be
included by way of proposed amendment. At the same time, the
Defendant No.3 was in unison with the Defendant No.1 that the issues
sought to be raised by way of proposed amendment, were beyond the
jurisdictional competence of the civil court.
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8. It is well recognized that all amendments which are necessary for
the determination of real question in controversy between the parties
are required to be permitted. Two overarching principles govern the
exercise of discretion to permit the amendment in the pleadings. One,
whether the amendment is necessary for the determination of real
question in controversy. Two, whether the amendment has the potential
to cause irretrievable prejudice to the opponent. The aspects as to
whether the amendment would change the nature of the suit and the
relief claimed thereby is otherwise barred by limitation, also deserve to
be taken into account. However, it is trite at a pre-trial stage, where the
interdict contained in the proviso to Order VI Rule 17 does not come
into play, an application for amendment is required to be considered
liberally.
9. In the case at hand, the learned Civil Judge reckoned that the
amendment was sought at a pre-trial stage. The interdict contained in
the proviso to Order VI Rule 17 of the Code, did not came into play.
What weighed with the learned Civil Judge was the inadequacy of the
material pressed into service on behalf of the Plaintiffs to substantiate
the prayers qua the exercise of the voting rights over the shares, which
were alleged to be part of the joint family property.
10. A bare perusal of the impugned order indicates that the learned
Civil Judge adverted to remote possibility of the prayers, sought to be
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incorporated by way of the amendment, being granted. Indeed, the
learned Civil Judge also opined that the prayers in relation to the
exercise of voting rights would fall within the exclusive jurisdiction of
the Tribunal under the Companies Act, 2013. Yet, it is the inadequacy of
the material to substantiate those pleas that seem to have influenced
the learned Civil Judge more.
11. Whether the aforesaid approach is justifiable ? By the proposed
amendment, as articulated in prayer clause (b) of the application, the
Plaintiffs intended to add the necessity of the restraint on the exercise
of voting rights on the shares of the entities, which were acquired from
the ANK and NAK HUFs. Lest, the Plaintiffs would suffer grave
prejudice. The averments in paragraph 40 of the plaint indicate that,
the Plaintiffs asserted that the assets of the Kalyani Family HUF were
under the control of the Defendants, who might deal with those assets
during the pendency of the suit, and, therefore, it was necessary to
restrain the Defendants from dealing with or in any manner disposing
of the properties of the HUFs.
12. By the proposed amendment, the Plaintiffs, in a sense, intended
to amplify and supplement the said assertions, and, thus sought
consequential prayers. On first principles, once the trial Court found
that, the prayer for amendment in the Plaint so as to substitute the
Annexures "A", "B" and "E" which contain additional properties, assets
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and funds, was justifiable, the amendments which were essentially
consequential from the point of view of the prayers in regard to such
properties could not have been dissected.
13. It is well recognized that the amendment which is in the nature of
amplification of the pleadings already on record, normally does not
change the nature and character of the suit. The amendment which
adds the further grounds in support of the prayers or amplify the case of
the Plaintiffs, or for that matter, seeks additional reliefs, on the strength
of the very cause of action, ought to be allowed as such amendment
neither changes the nature of the suit, nor has the potential to cause
prejudice to the adversary.
14. In the case of Jai Jai Ram Manohar Lal V/s. National Building
Material Supply, Gurgaon1, the Supreme Court enunciated the principles
which govern the exercise of the jurisdiction to permit the amendment
in the plaint, as under :
"5. ... ........ Rules of procedure are, intended to be a
handmaid to the administration of justice. A party
cannot be refused relief merely- because of same
mistake, negligence, inadvertence or even infraction of
the rules of procedure. The Court -always gives leave to
amend the pleading of a party, unless it is satisfied that
the party applying was acting mala fide, or that by his
blunder he had caused injury to his opponent which may
not be compensated for by an order of costs. However
1 (1969) 1 SCC 869
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negligent or careless may have been the -first omission
and however late the proposed amendment, the
amendment may be allowed if it can be made without
injustice to the other side.........."
15. In the case of Vineet Kumar V/s. Mangal Sain Wadhere 2, the
Supreme Court enunciated that if a prayer for amendment merely adds
to the facts already on record, the amendment shall be allowed even
after the statutory period of limitation. The observations of the
Supreme Court in paragraph No.16 read as under :
"16. Normally amendment is not allowed if it changes
the cause of action. But it is well recognised that where
the amendment does not constitute an addition of a new
cause of action, or raise a new case, but amounts to no
more than adding to the facts already on the record the
amendments would be allowed even after the statutory
period of limitation. The question in the present case is
whether by seeking the benefit of Section 39 of the new
Act there is a change in the cause of action. In A.K.
Gupta & Sons. v. Damodar Valley Corporation 3 this Court
dealing with the cause of action observed as follows :
"The expression "cause of action" in the present
context does not mean every fact which it is material to
be proved to entitle the plaintiff to succeed" as was said
in Cooks v. Gill(2) in a different context, for if it were so,
no material fact could ever be amended or added and,
of course, no one would want to change or add an
immaterial allegation by amendment. That expression
2 (1984) 3 SCC 352
3 AIR 1967 SC 96
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for the present purpose only means, a new claim made
on a new basis constituted by new facts. Such a view
was taken in Rabinson v. Unicos Property Corporation
Ltd.(3) and it seems to us to be the only possible view to
take. Any other view would make the rule futile."
(emphasis supplied)
16. The aforesaid being the position in law, the learned civil Judge
could not have refused to permit the Plaintiffs to amend the Plaint so as
to add new grounds and prayers on the premise that it would change
the nature of the suit, especially when the learned Civil Judge allowed
the Plaintiffs to add the purported joint family properties in the suit
claim.
17. On the aspect of the Court refraining from delving into the merits
of the claim proposed to be added by way of amendment also, the legal
position is well-neigh settled. A profitable reference in this context can
be made to a decision of the Supreme Court in the case of Rajesh Kumar
Aggarwal and Ors. V/s. K.K.Modi and Ors.4, wherein the Supreme Court
emphasised the cardinal principle that the Court should not go into the
correctness or falsity of the case sought to be introduced by way of
amendment. The observations of the Supreme Court in paragraphs 18
and 19 read as under :
"18. As discussed above, the real controversy test is
the basic or cardinal test and it is the primary duty of
4 (2006) 4 SCC 385
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the Court to decide whether such an amendment is
necessary to decide the real dispute between the parties.
If it is, the amendment will be allowed; if it is not, the
amendment will be refused. On the contrary, the learned
Judges of the High Court without deciding whether such
an amendment is necessary has expressed certain
opinion and entered into a discussion on merits of the
amendment. In cases like this, the Court should also
take notice of subsequent events in order to shorten the
litigation, to preserve and safeguard rights of both
parties and to sub-serve the ends of justice. It is settled
by catena of decisions of this Court that the rule of
amendment is essentially a rule of justice, equity and
good conscience and the power of amendment should
be exercised in the larger interest of doing full and
complete justice to the parties before the Court.
19. While considering whether an application for
amendment should or should not be allowed, the Court
should not go into the correctness or falsity of the case
in the amendment. Likewise, it should not record a
finding on the merits of the amendment and the merits
of the amendment sought to be incorporated by way of
amendment are not to be adjudged at the stage of
allowing the prayer for amendment. This cardinal
principle has not been followed by the High Court in the
instant case." (emphasis supplied)
18. In the case of Mohinder Kumar Mehra v/s. Roop Rani Mehra and
Ors.5, where the High Court had affirmed the order of rejection of the
5 (2018) 2 SCC 132
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prayer for amendment passed by the learned District Judge on the
ground that the relief sought to be added by way of amendment may be
barred by limitation, the Supreme Court enunciated the law, as under :
"27. In the facts of the present case, final
determination as to whether the claim could be held
to be barred by time could have been decided only
after considering the evidence led by the parties.
Whether plaintiff had any share in the property,
which was sold in the year 2000 and what was the
nature of his share and whether he can claim
recovery of his share within twelve years were all the
questions on which final adjudication could have
been made after considering the evidence and at the
stage of considering the amendment in the facts of
the present case, it was too early to come to a
conclusion that limitation was only three years and
not twelve years as claimed by the plaintiff. The High
Court on the one hand refrained from expressing any
opinion and on the other hand has expressed his
agreement with the view taken by the Additional
District Judge rejecting the application as barred by
time." (emphasis supplied)
19. Viewed through the aforesaid legal prism, it becomes evident
that, the learned Civil Judge did not adhere to the well settled legal
position and ventured to evaluate the merits of the claim. The
observations of the learned Civil Judge that, even in the very suit, if at a
later stage, the Plaintiffs succeed in bringing the satisfactory evidence /
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material on record, the proposed prayers in the application for
amendment can be considered, betrays the satisfaction of the learned
civil Judge that the proposed amendment was necessary for the
determination of real question in controversy. Whether the prayers
sought to be added by way of amendment were beyond the jurisdiction
of the Civil Court, is a matter which could be considered and
adjudicated by the learned Civil Judge only after the amendment was
allowed.
20. The submission of Mr. Purohit that the prayers for interim reliefs
were not required to be added in the plaint when an application for
interim injunction can be a proper device, does not carry the matter any
further. Since the proposed reliefs appear to be essentially
consequential to the amendment which has been permitted to be
carried out by the learned Civil Judge, the rejection of the prayer to
incorporate those additional reliefs, be interim in nature, appears
clearly unsustainable.
21. For the foregoing reasons, the impugned order deserves to be
interfered with and the Petition deserves to be allowed.
22. Hence, the following order :
ORDER
(i) The Writ Petition stands allowed in terms of prayer clause
(b) of the Petition.
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(ii) Necessary amendment to incorporate the averments and
prayers in terms of prayer clauses (b) and (c) of the application for
amendment, be carried out within a period of three weeks and
amended copy of the plaint be served on the Defendants within a period
of one week thereafter.
(iii) The Defendants are at liberty to file an additional written
statement, if any, to the amended plaint, within a period of 30 days
from the service of the copy of the amended plaint.
(iv) Rule made absolute to the aforesaid extent.
(v) No costs.
[N. J. JAMADAR, J.]
Signed by: S.S.Phadke ssp 14/14
Designation: PS To Honourable Judge
Date: 15/12/2025 19:40:10
