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CA/6802/2010 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR AMENDMENT No. 6802 of 2010
In
SPECIAL
CIVIL APPLICATION No. 8582 of 2006
=========================================================
BAMBHANIYA
MANSUKHBHAI BACHUBHAI - Applicant
Versus
PRESIDENT
& 5 - Opponents
=========================================================
Appearance
:
MR
KB PUJARA for
Applicant.
MR GM JOSHI for Opponents : 1 - 2.
MR NIRAG PATHAK,
AGP, for Opponents : 3-4,
MR BIPIN P JASANI for Opponent : 5,
MR
BN PATEL for Opponent :
6,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
Date
: 26/07/2010
ORAL
ORDER
Leave
to amend. To be carried out forthwith.
2. Rule.
Learned advocate Mr.Joshi waives service of notice of rule for
opponent Nos.1 & 2, learned A.G.P. Mr.Pathak waives service of
notice of rule for opponent Nos.3 & 4, learned advocate Mr.Jasani
waives service of notice of rule for opponent No.5 and learned
advocate Mr.Patel waives service of notice of rule for opponent No.6.
3. This
is an application seeking an amendment to the main petition.
4. Heard
the learned advocates for the parties.
5. Learned
advocate Mr.Pujara indicated that this amendment is sought to be
brought on record in light of subsequent development that has taken
place pending the petition. Mr.Pujara submitted that this amendment
is brought in to put the petition technically in order and,
therefore, the application may be allowed.
6. Learned
advocate Mr.Joshi, learned AGP Mr.Pathak and learned advocate
Mr.Patel have no objection to the grant of amendment.
7. Learned
advocate Mr.Jasani, appearing for opponent No.5, has strongly opposed
this application. According to him, the application cannot be
entertained for the following reasons;-
(i) the
application is preferred at a belated stage;
(ii) by
bringing this amendment, nature of the petition is sought to be
changed;
(iii)this
question was already considered by this Court while considering the
question of interim relief; and
(iv)
this amendment is brought in to negate the order passed by this High
Court in earlier petitions preferred by opponent Nos.5 & 6.
7.1 Mr.Jasani
has drawn attention of this Court to an order passed by this Court on
5.9.2006, which is passed after taking into consideration the
subsequent development now sought to be brought on record. Mr.Jasani,
therefore, submitted that the grant of this application would cause
prejudice to opponent No.5 and, therefore, may not be allowed.
8. Having
regard to the rival submissions, at the outset, it may be noted that
the amendments sought to be brought on record on account of
subsequent development during the pendency of the petition had
already attracted the attention of the applicant, opponents and the
Court soon after the development took place when the Court dealt with
the question of interim relief by order dated 5.9.2006. The Court, in
terms, has made reference to the development in that order. Even in
the additional affidavit filed by the petitioner, there is reference
to the new development. Therefore, learned advocate Mr.Jasani is to
an extent justified in raising a plea that the applicant has
approached this Court at a belated stage. Almost four years have
gone-by and the petitioner has taken no action in this regard.
However, learned advocate Mr.Pujara is also right in stating that the
petition was not listed till 16.6.2010 after passing of the order on
5.9.2006. This is what reflected in the order itself. Mr.Pujara has,
in all frankness, taken the responsibility upon himself that upon
reading the petition when it was listed on 16.6.2010, he realised a
need for putting the petition in order technically.
9. It
is true that delay defeats, but when the delay has not caused any
prejudice to the other side and when causing of delay is not likely
to accrue any unjust benefit to the person coming late to the Court,
delay need not come in the way. If the order dated 5.9.2006 is seen,
appointment of opponent No.5 is already held subject to the final
outcome of the petition. Now, if that part is not challenged in the
petition, it would render the petition incomplete and technically
defective. If an attempt is made to put the house in order, there is
nothing to read any ulterior motive behind coming to the Court late,
because that fact is already brought to the notice of all the
concerned, including the Court and delay part, therefore, need not
come in the way of the petitioner.
10. So
far as the contention that the petitioner’s attempt is to nullify the
order passed by this Court in the earlier petitions, which were
preferred by opponent Nos.5 & 6 is concerned, no such relief is
sought, which would go adverse to that order. On the contrary, the
order dated 5.9.2006 makes it explicit that the appointment of
opponent No.5 is subject to the final outcome of this petition and
that order has been accepted by opponent No.5, as it has not been
challenged yet. This contention, therefore, cannot be accepted.
11. So
far as the contention that by the amendment, the nature of the
petition is sought to be changed, probably, is not the correct way of
looking at the petition. The petitioner is asserting his right, of
which he was deprived, firstly by opponent Nos.5 & 6 while
bypassing him and getting appointment. The details have come to the
notice of the petitioner only after he sought information under the
Right to Information Act.
12. Lastly,
it hardly needs to be stated that by mere grant of amendment of
petition, no relief is granted. It only enables the petitioner to
canvass a point before the Court and seek relief, which may or may
not be granted. This amendment, on the contrary, reduces burden on
the shoulder of the judicial system by filing a fresh petition, which
the petitioner could have filed.
13. In
view of the above discussion, this application deserves to be allowed
and the same is allowed. The amendment to be carried out forthwith.
Rule is made absolute. No costs.
13.1 The
petitioner shall supply a fresh copy of the amended petition to the
Court and shall serve to respondent Nos.1 & 2 and supply to
learned A.G.P and learned advocates for rest of the respondents. This
shall be done by the petitioner within two weeks.
[A.L.Dave,J.]
(patel)
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