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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.10133 OF 2015

ARVIND KASHINATH GAJESHWAR

VERSUS

SUBHASH @ SUBHASHCHANDRA RAMCHANDRA WANI

AND OTHERS

WITH

WRIT PETITION NO.10199 OF 2015

ARVIND KASHINATH GAJESHWAR

VERSUS

SATISH @ SATISHCHANDRA RAMCHANDRA WANI AND

OTHERS

…

Mr. S. P. Brahme, Advocate for the Petitioner.

Mr. R. R. Sancheti, Advocate for Respondent Nos.1, 1A and 1B.

Mr. Anand Bhandari, Advocate for Respondent No.2.

Mr. A. N. Sabnis, Advocate for Respondent Nos.9 to 11.

Mr. M. M. Bhokarikar, Advocate for Respondent Nos.12-B.

…

CORAM : SANDEEP V. MARNE, J.

DATED : 16^th DECEMBER, 2022.

PER COURT:-

1.

These petitions are filed challenging the orders dated 14.07.2015

passed by the Joint Civil Judge, Senior Division, Bhusawal rejecting plaintiff’s

application for amendment filed under the provisions of Order 6 Rule 17 of the

Code of Civil Procedure, 1908 (for short ‘the Code of 1908’).

2.

Before adverting to the facts of the present case it

would be necessary to refer to the recent judgment of the Supreme

Court in Life Insurance Corporation of India Vs. Sanjeev

Builders Private Limited & Anr., AIR 2022 SC 4256, wherein

the Apex Court has summarized the principles relating to the

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amendment of pleadings in paragraph no.70 of the judgment

which reads thus:

“70. Our final conclusions may be summed up thus:

(i) Order II, Rule 2 CPC operates as a bar against a subsequent

suit if the requisite conditions for application thereof are satisfied

and the field of amendment of pleadings falls far beyond its

purview. The plea of amendment being barred under Order II

Rule 2 CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary for

determining the real question in controversy provided it does not

cause injustice or prejudice to the other side. This is mandatory,

as is apparent from the use of the word “shall”, in the latter part

of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper

adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not

seek to withdraw any clear admission made by the party which

confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting

in divesting of the other side of a valuable accrued right (in

certain situations).

(iv) A prayer for amendment is generally required to be allowed

unless

(i) by the amendment, a time barred claim is sought to be

introduced, in which case the fact that the claim would be time

barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the

court should avoid a hypertechnical approach, and is ordinarily

required to be liberal especially where the opposite party can be

compensated by costs.

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(vi) Where the amendment would enable the court to pin-

pointedly consider the dispute and would aid in rendering a

more satisfactory decision, the prayer for amendment should be

allowed.

(vii) Where the amendment merely sought to introduce an

additional or a new approach without introducing a time barred

cause of action, the amendment is liable to be allowed even after

expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended

to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to

disallow the prayer. Where the aspect of delay is arguable, the

prayer for amendment could be allowed and the issu