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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7520 OF 2008
Abdul Gafoor S/o Abdul Rehman }
Age : 36 Years, Occ. : Business, }
R/o : Bilalnagar, Nanded. } .... PETITIONER
V E R S U S
1. The Deputy Executive Engineer
ig }
(M.S.E.B.), Urban Sub Division - I, }
Vazirabad, Near Udipi Hotel, Nanded}
2. The Sub Engineer }
(M.S.E.B.), Chaupala, Nanded. } .... RESPONDENTS
Mr. J.R.Sayyed, Advocate holding for Mr. P.R.
Katneshwarkar, Advocates for Petitioner.
Mr. H.T.Joshi , Advocate for Resp. Nos. 1 & 2.
[ CORAM : S.S.SHINDE, J. ]
DATE : 24/08/2009
JUDGMENT :
1. This Writ Petition is filed challenging the Order dated
17/10/2008 passed by the 4th Civil Judge (J.D.), Nanded below Exh.
138 in R.C.S. No. 95 of 2002.
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2. Learned counsel appearing on behalf of petitioner
submitted that the application which was filed by the petitioner for
amendment of the plaint has been erroneously rejected by the trial
Court. According to the learned counsel, the amendment which was
sought by the petitioner was only in the nature of consequential relief.
According to the learned counsel, the prayer was made in the said
application for amendment of plaint on the basis of facts, which are
already on record. The amendment can not be said to be prejudicial to
the interest of the defendant and application for amendment was filed
at the stage when the statements of the plaintiff/petitioner was
recorded by the trial court. The learned counsel invited my attention to
the contents of the application which is at EXH. B from page no. 16 to
18 and vehemently submitted that in the interest of justice, amendment
should have been allowed by the trial court. The learned counsel
invited my attention to the grounds taken in the Writ Petition and
submitted that the application filed by the applicant was at proper time
and is perfectly maintainable under Order VI Rule 17 proviso of Code
of Civil Procedure. According to the learned counsel, the amendment
to the plaint can be brought at any stage of the proceedings. The
learned counsel placed reliance on the reported Judgment of the
Supreme Court in case of M.C. Agrawal, HUF V/s Sahara India and
others reported in 2008 (6) Mh.L.J. 519 in which it is held that,
” It is always open by way of an amendment to
amalgamate the two reliefs in one suit “.
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3. Learned counsel appearing for the petitioner further
invited my attention to the Judgment in case of North Eastern Railway
Administration, Gorakhpur V/s Bhagwan Das (dead) by L.Rs.
Reported in (2008) 8 Supreme Court Cases 511 and submitted that to
put an end to the real controversy, amendment should be allowed.
Learned counsel further invited my attention to the reported Judgment
of this Court in case of Twist Spin Industries V/s KMH Enterprises
reported in 2009 (4) Bom. C.R. 216 and submitted that the
amendment should be liberally allowed by the trial Court. Learned
counsel invited my attention to paragraph 7,8 and 9 of the aforesaid
Judgment and submitted that for the fault on the part of lawyer, who
inadvertently not added some paragraphs in the plaint, client should
not be punished.
4. Learned counsel appearing for the respondent submitted
that the trial Court has rightly rejected the application for amendment
which was filed at belated stage. According to learned counsel for the
respondent, the trial was already commenced and the application which
was filed by the petitioner herein was filed at the stage when the
matter is pending for cross examination of defendant. Learned counsel
further submitted that if the application for amendment is allowed, it
will change the nature of Suit and also prejudice the interest of the
respondent and, therefore, the trial court has taken a possible view and
no interference is called for by this Court under Article 227 of the
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Constitution of India.
5. I have heard learned counsel for the petitioner and learned
counsel for the respondent. Upon hearing, I am of the considered view
that the trial court has taken a possible view and after appreciating the
contentions raised by the respective parties, has rightly rejected the
application.
6. Learned counsel for the petitioner is not right in
contending that the amendment which the petitioner wish to bring to
the plaint, would not change the nature of the Suit or will not prejudice
the interest of the defendant. The main Suit is filed by the petitioner, is
for injunction. The prayer in an application which is at EXH. B i.e.
application below Exh. 138 in R.C.S. No. 95 of 2002 reads thus :
” (i) Declaration that the provisional
assessment bill dated nil in respect of consumer no.
IP-20148-9 in the name of Shri. Abdul Rehman,
Bilalnagar, Nanded in the sum of Rs. 2,20,259.40
Ps. Issued by Deputy Executive Engineer, USD-1
MSEB, Nanded is null and void.
(ii) The demand bill dated 20/2/2002 in
the sum of Rs. 1,76,259/- also issued by above
authority pertaining to above consumer, deserves to
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be declared as null and void ab-initio “.
7. Therefore, from the perusal of the above mentioned
prayers, it is crystal clear that the prayer of the petitioner is totally
different and is seeking declaration that the provisional assessment bills
as narrated in the prayer, should be declared as null and void.
Therefore, it can not be said that the amendment which the
plaintiff/petitioner wish to bring to the plaint would not change the
nature of the Suit or will not prejudice the interest of the respondent.
Secondly, as the trial court has rightly observed that the application is
at belated stage and the same is filed at the stage when the cross
examination of the defendant is due. The trial court has properly
appreciated the provisions of Order VI Rule 17 proviso of the Code of
Civil Procedure and rejected the application of the petitioner.
8. So far Judgment which is cited by the learned counsel for
the petitioner are not applicable in the facts of this case. The relief
which is claimed by the petitioner in an application for amendment of
the plaint is different than the earlier relief claimed in the Suit. Apart
from that, the application is filed at belated stage at the time of cross
examination of the defendant. Therefore, the Judgments cited by
counsel for the petitioner are not applicable in the facts of this case.
9. The Hon’ble Supreme Court had an occasion to consider
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Order VI Rule 17 proviso of the Code of Civil Procedure in case of
Vidyabai and others V/s Padmalatha and another reported in
(2009) 2 Supreme Court Cases – 409 and held that,
” Proviso to Order VI Rule 17 is couched in a
mandatory form. The Court’s jurisdiction to
allow such an application is taken away unless
the conditions precedent therefor are satisfied
i.e. it must come to a conclusion that in spite
of due diligence, the parties could not have
raised the matter before the commencement of
trial “.
10. The Apex Court further held that,
” Commencing of the trial is date on which the
Issues are framed, is the date of first hearing ”
And, therefore, keeping in mind the interpretation given by
the Hon’ble Apex Court to the Order VI Rule 17 Proviso, I am of the
considered view that the application which was filed by the petitioner at
belated stage, without disclosing in the application that in spite of due
diligence he could not bring the said matter before the commencement
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of trial.
11. Viewed from any angle, the Order passed by the trial Court
does not call for any interference. Writ Petition is devoid of any merits
and same is dismissed.
[ S.S. SHINDE ]
JUDGE
knp/WP7520.08
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