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2013 Supreme(Bom) 215
HIGH COURT OF JUDICATURE AT BOMBAY
R.G. KETKAR, J.
Hindustan Computers
Versus
Dart Computers Ltd. & Others
Writ Petition No.3130 of 2010
Decided On : 28-01-2013
For the Petitioner:Uday Malte, Advocate.
For the Respondents:Anilkumar a/w Meghnath Navlani i/b A. Kumar & Asso., Advocates.
Headnote:Civil Procedure Code, 1908 - Order VI, Rule 17 - Amendment of plaint. - Amendment sought in plaint being only clarificatory and not changing nature of suit, deserves to be allowed.
Civil Procedure Code, 1908 - Order VI, Rule 17 - Delayed application for amendment of plaint. - If no prejudice caused to defendants on account of delay in seeking amendment of plaint, trial Court ought to have allowed amendment subject to imposition of costs. - The application for amendment was belatedly moved. Even accepting the application was belatedly moved, the trial Judge could have considered imposition of costs if the trial has not commenced. The trial Judge was of the view that though these facts were within the knowledge of the plaintiff, and her husband the application should not have been moved belatedly. The reason given by the denied trial Court for rejecting the application for amendment on the ground of delay, cannot be upheld as no prejudice is shown to have been caused to the defendants. Having regard to the nature of the proposed amendment, the trial Judge should not have refused the amendment. The trial Judge also wrongly came to the conclusion that the proposed amendment is likely to change the nature of the suit. The suit instituted by M/s. Hindustan Computers and the prayers are also one and the same. The only amendment about description of plaintiff and paragraph 1(a), is of clarifictory in nature. The reason given by the trial Judge is that the proposed amendment is likely to change the nature of the suit and consequently adversely affect the rights of the defendants and therefore cannot be sustained.
Civil Procedure Code, 1908 - Order VI, Rule 17 - Refusal to amend plaint. - Since trial of case has not commenced hence amendment of plaint cannot be refused by trial Court. - It is not in dispute that the plaintiff has not filed affidavit of evidence in lieu of examination-in-chief. In view of the Judgment of the Apex Court in the case of Vidyabai, 2009 (1) All MR 471 (SC), the trial Judge has committed error in coming to the conclusion that the trial has already commenced. The reasons for rejecting the application for amendment, therefore, cannot be sustained.
Heard Mr. Uday Malte, learned counsel for the petitioner and Mr. Anilkumar, learned counsel for the respondents at length.
2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner, hereinafter referred to as 'plaintiff' has challenged the Judgment and order dated 11.2.2010 passed by the Civil Judge (Sr.Dn), Malegaon, below Exhibit-49 in Special Civil Suit No.76 of 2004. By that order, the learned trial Judge rejected the application taken out by the plaintiff for amending the Plaint.
3. The plaintiff-M/s Hindustan Computers instituted Special Civil Suit No.76 of 2004 on 4.9.2004 for recovery of Rs.44,81,820/- from the respondents, hereinafter referred to as 'defendants'. The plaintiff was sued as under:-
"M/s.Hindustan Computers, Through - Upendra lad, Age 39 years, Occ: Business."
The defendants resisted the suit by filing Written Statement on 30.10.2004. Issues were framed on 28.10.2005. On 19.6.2009 the plaintiff filed application for amendment of the Plaint. The plaintiff proposed amendment in the description of the suit as under :
(a) After "M/s Hindustan Compueters" and before "Upendra" following words be added in place of "Through"- Proprietary concern, Proprietor Mrs Neeta Upendra Lad represented by General Power of Attorney Holder"
(b) After word "Business", "and Service" words be added."
The plaintiff also proposed to add para-1 (a) after para-1 of the Plaint, which reads as under :
"1(a) The plaintiff Hindustan Computers is the Proprietary concern and Mrs Neeta Upendra Lad who is wife of Mr Upendra Devendra Lad, is a proprietor of Hindustan Computers. Mr Upendra Devendra Lad as a General Power of Attorney holder for Hindustan Computers renders help to deal with all business transactions of Hindustan Computers. Even at the time of negotiations with present defendants, Mr Upendra Devendra lad has assisted in negotiating with defendants. The agreement dated 20.2.2003 and subsequent cancellation agreement dated 11.7.2003 have been also executed between the plaintiff and defendants on which Mr Upendra Devendra Lad has put his signature on behalf of plaintiff on the request by the proprietor. The proprietor of Hindustan Computers Mrs Neeta Upendra Lad has executed General Power of Attorney in favour of husband Mr Upendra Devendra Lad on 16.10.2002 and such General Power of Attorney is also notarized with the Notary. Mr Upendra Devendra Lad personally has knowledge of all the dealings of Hindustan Computers. Mr Upendra Devendra Lad witnessed and participated in all transactions and dealing with the present defendants, and as such, he is filing the present suit in his capacity as a General Power of Attorney Holder of Mrs Neeta Upendra lad for and on behalf of Hindustan Computers."
The defendants resisted the application by filing reply dated 7.8.2009. By the impugned order, the learned trial Judge rejected the application. It is against this order, the plaintiff has instituted the present petition under Articles 226 and 227 of the Constitution of India.
4. The petition was admitted by issuing Rule on 20.10.2010 and ad-interim relief in terms of prayer clause (B) was confined to the stay of the suit.
5. In support of this petition, Mr. Malte invited my attention to the copy of the Plaint in Special Civil Suit No.76 of 2004 and in particular description of the plaintiff. He also invited my attention to the application for amendment made by the plaintiff on 19.6.2010. He submitted that the learned trial Judge rejected the application on the following grounds:
(i) The application for amendment was made belatedly;
(ii) The proposed amendment is likely to change the nature of the suit and also adversely affect the right of the defendants;
(iii) The proposed amendment will hit the suit by law of limitation and
(iv) The trial of the suit has already commenced.
6. Mr. Malte submitted that the reasons given by the learned trial Judge while rejecting the application for amendmen
