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W.P.No.7080/12 with W.P.No.7112/12

FARAD CONTINUATION SHEET NO.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE, BENCH AT AURANGABAD

WRIT PETITION NO.7080 OF 2012

WITH

W.P.NO.7112 OF 2012.

Office Notes, Office

Memoranda of Coram,

appearances, Court's

orders or directions

and

Registrar's

orders.

Court's or Judge's orders

Mr.A.H.Kasliwal, advocate for the petitioner.

CORAM : S.V.GANGAPURWALA,J.

Date : 27.08.2012.

PER COURT :

1.

Heard.

2.

The present petitioner is the original defendant. The

Respondents filed suit for recovery of amount. After the issues

were framed, the plaintiff filed its examination-in-Chief on

affidavit. After the examination-in-Chief was filed, the present

defendant raised an objection and filed an application to expunge

some part of the examination-in-Chief on the ground of absence of

pleadings. The said application was allowed. The trial Court

directed the plaintiff to expunge from examination-in-Chief, that

part of which there was no pleadings. Thereafter, the plaintiff filed

an application for amendment. By way of proposed amendment,

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W.P.No.7080/12 with W.P.No.7112/12

the plaintiff sought to introduce three lines in para 2 stating that the

defendant as per the procedure of the plaintiff has time to time

renewed the loan. The said application is allowed. Aggrieved

thereby, the present petitions.

3.

Mr.Kasliwal, learned counsel for the petitioner strenuously

contends that the trial Court could not have entertained the said

amendment application in view of proviso to Rule 17 of Order VI

of the C.P.C. Once the examination-in-Chief has been filed, the

trial commences and unless due diligence is shown, the application

for amendment can not be allowed. The learned counsel relies on

the judgment of the Apex Court in a case of "Vidyabai and others

Vs. Padmalatha and another" reported in 2009 (1) ALL MR 471

(S.C.). So also the judgment of the Apex Court in a case of

"J.Samuel and others Vs. Gattu Mahesh and others" reported in

2012 (4) Mh.L.J.40.

4.

According to the learned counsel, if the amendment is

allowed, the vested right accrued to the defendant would be taken

away. The suit as filed and pleaded would be barred by limitation.

The loan is said to have been sanctioned in the year 2000. The

dispute U/s 91 of the Maharashtra Cooperative Societies Act, is

filed in the year 2005, which would be barred by limitation. Such

an amendment which takes away the vested right of the defendant

could not have been allowed.

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W.P.No.7080/12 with W.P.No.7112/12

5.

With the assistance of the learned counsel, I have gone

through the order. It is a matter of record that the plaintiff had filed

his affidavit by way of examination-in-Chief.

6.

The proposition that after the trial of suit commences then

unless the plaintiff shows due diligence, the amendment application

can not be considered need not be debated. The same is the settled

proposition as is also held by the Apex Court in a case of

"Vidyabai and others Vs. Padmalatha and another" and

"J.Samuel and others Vs. Gattu Mahesh and others" referred

supra.

7.

In the present case, the plaintiff had filed his examination-

in-Chief. The defendant filed an application to expunge certain

paras from the said examination-in-Chief on the ground that the

same is not pleaded. The Court passed the order and directed the

plaintiff to expunge the said part from the examination-in-Chief or

to file fresh affidavit. At this stage, after the said order was passed,

the plaintiff has moved the application.

8.

It is also matter of record that the defendant had not cros