35 WP-6264-22.doc

BDP-SPS-TAC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 6264 OF 2022

WITH

INTERIM APPLICATION NO.3285 OF 2022

IN

WRIT PETITION NO. 6264 OF 2022

Krishnadas Jagmihandas Shroff

(deleted since deceased)

1A. Mayur Krishnadas Shroff

and Anr.

…. Petitioners.

V/s

State Bank of Bikaner and Jaipur

(Deleted)

State Bank of India

…. Respondent.

Mr. Ankit Rajput i/b Rutvij Bhatt for the original Petitioners.

Mr. Bharat H. Mehta a/w Mr. Toor a/w Mr. Devang Mehta for the

Respondents.

CORAM: NITIN W. SAMBRE, J.

DATE: JULY 19, 2022

P.C.:-

1]

Heard.

2]

Challenge in the Petition is to the order dated 7^th April, 2022

passed below Exhibit-34 whereby Respondent’s Application moved for

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BHARAT

DASHARATH

PANDIT

Digitally signed

by BHARAT

DASHARATH

PANDIT

Date: 2022.07.21

17:08:27 +0530

35 WP-6264-22.doc

amendment of Memo of Appeal came to be allowed.

3]

Counsel for the Petitioners would urge that amendment

application has been moved at much belated stage i.e. after six years

of lodging of the Appeal. According to him, in 2018, already

amendment was carried out when the grounds which are now sought

to be incorporated by way of amendment were available. As such,

according to him, it is a case of acquiescence, as the Respondent

knowing fully well of such grounds having not raised the same has

been estopped from incorporating the said grounds at belated stage.

Drawing support from the judgment of the Apex Court in the matter

of Ganga Bai vs. Vijay Kumar and Ors in Civil Appeal No.582 of 1969

delivered on 09/04/1974 , he would urge that amendment cannot be

permitted at belated stage, if such a prayer is not accompanied with

application for condonation of delay.

4]

The order impugned is supported by the Counsel for

Respondents.

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5]

I have appreciated aforesaid submissions.

6]

The judgment of the Apex Court in the matter of Ganga Bai,

cited supra is in relation to challenge to decree for partition wherein

preliminary decree was not questioned by the party and while

questioning final decree, at belated stage in appeal amendment was

sought. However, in the case in hand proceedings are for mesne

profit. This Court is required to be sensitive to the provisions of Order

41 Rule 2 of the Civil Procedure Code which allows party to agitate

additional grounds with permission of the Court. Such grounds,

which are not supported by any pleadings or evidence, of-course, will

be ignored by the Appellate Court at the time of final hearing.

However, that by itself will not give leverage to the Petitioners to claim

that Respondent is not entitled for amendment as prayed. The order

impugned appears to be in tune with the law. No interference is called

with the order impugned. Petition as such fails and same stands

dismissed.

7]

However, Respondent/Appellant is put to condition of depositing

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of Rs 10,000/- towards costs in the above proceedings within a period

of four weeks from today as condition precedent for arguing the

additional grounds set-forth by way of amendment. Needless to

clarify that Petitioners will be entitled to withdraw the said costs.

8]

Since Petition itself is disposed of, nothing survives in pending

Interim Application and same is also disposed of.

( NITIN W. SAMBRE, J. )

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