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HIGH COURT OF BOMBAY
SANDEEP V. MARNE, J
Prabhakar Gangadhar Bhingardive – Appellant
Versus
Padmakar Gangadhar Bhingardive – Respondent
Writ Petition No. 10534 of 2022
For the Appellants/Petitioners: Shri Pratik P. Kothari, Ms. Nandini Chittal
For the Respondents: Shri S. V. Suryawanshi, Shri L. B. Palod, Shri S. S. Dixit
Legal principles concerning the amendment of plaint under the Code of Civil Procedure; emphasizing necessity over technicality in allowing amendments post-commencement of trial.
Headnote:(A) Code of Civil Procedure, 1908 - Order VI Rule 17 - Amendment of plaint - The petitioner sought to amend the plaint to include facts related to construction by the defendant on the suit property, previously granted temporary injunction - Trial Court rejected the application for lack of due diligence, yet the Court finds the necessity of incorporating the facts to determine the real controversy. (Paras 2, 10)
(B) Amendment - The Court emphasized that amendments should avoid multiplicity of litigation and can be allowed even post commencement of trial, provided the amendment is not introducing a new case. (Paras 4, 8)
Facts of the case:
The petitioner challenged the rejection of his application for amendment after the start of trial concerning the defendant’s construction activities on the suit property previously addressed in a temporary injunction.
Findings of Court:
The petitioner’s amendment application was allowed due to its relevance to the ongoing suit, while costs were imposed for failure in diligence.
Issues: The main issue concerned whether the amendment was necessary despite the claim of lack of due diligence by the petitioner.
Ratio Decidendi: Courts should adopt a liberal approach towards amendments to ensure genuine issues are addressed and costs are imposed for the petitioner’s negligence.
Result: Application for amendment allowed; costs imposed.
| Table of Content |
|---|
| 1. necessity of amendment to include relevant facts. (Para 2 , 6) |
| 2. arguments for and against amendment application. (Para 3 , 4) |
| 3. court observations on prior temporary injunction. (Para 5 , 7) |
| 4. rationale for accommodating amendments despite negligence. (Para 8 , 9) |
| 5. final decision on allowing amendment and imposing costs. (Para 10) |
. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.
2. Petitioner assails order dated 15.09.2022 passed by the 10th Joint Civil Judge Senior Division, Ahmednagar on application below Exhibit 98 in R.C.S. (Special Civil Suit) No. 88 of 2020 thereby rejecting his application for amendment of plaint. By that application, he sought to add para No. 6A to the plaint to bring on record the events of the defendant No. 1 carrying out construction over the suit property. The application is rejected as the trial in the suit had commenced and the plaintiff could not show due diligence required under Proviso to Order VI Rule 17 of the Code of Civil Procedure (for short “Code”).
3. Appearing for the petitioner, Mr. Kothari, the learned counsel would submit that the issue of defendant No. 1 carrying out construction on the suit property was specifically highlighted for seeking temporary injunction and considering that aspect, temporary injunction is already granted in favour of the petitioner. He therefore submits that the factum of defendant No. 1 carrying out construction on the suit property has already been a subject matter of controversy atleast in the application for temporary injunction. The same needs to be incorporated in the plaint as well. Mr. Kothari relies upon the judgment of this Court in Rashed Ali Vs. Avni Ventruers and others reported in MANU/MH/0158/2022.
4. Per contra, Mr. Suryawanshi, learned counsel holding for Mr. Palod, learned counsel for the respondent No. 1 opposes the petition and supports the order passed by the Trial Court. He submits that this was the third amendment sought for by the plaintiff after the first two amendments were allowed. He would further submit that by amendment, plaintiff proposes to bring on record the events related to the month of May 2020, while the suit is filed in June 2020. The plaintiff was thus fully aware of the events, but chose not to incorporate them in the plaint. He would therefore submit that the plaintiff has not cleared the test of due diligence required under the Proviso to Order VI Rule 17 of the Code. He therefore prays for dismissal of the petition. In support of his contention Mr. Suryawanshi relies on the judgment of this Court in the Liquidator the Maratha Market People’s Co-op. Bank Ltd. Vs. M/s Jeejaee Estate and others reported in 2019(1) All MR 884.
5. Mr. Dixit, learned counsel appearing for respondent Nos. 3 and 4 submits that, respondent Nos. 3 and 4 have neither filed reply opposing amendment application, nor opposed the same before the Trial Court.
6. Having heard learned counsel for parties, there can be no iota of doubt that plaintiff has been extremely negligent in filing application for amendment. The only reason cited in the application is inadvertence and typographical error. It is beyond comprehension as to how non-inclusion of events of 31st May, 2020 can fit into the expression “typographical error”. There is no averment in the application that despite due diligence the events sought to be incorporated by amendment could not be narrated in the plaint. Be that as it may. It is a matter of fact that the act of defendant No. 1 carrying out construction on the suit property was subject matter of application for temporary injunction. By order dated 07th July, 2020, the Trial Court has granted temporary injunction in favour of the plaintiff restraining the defendant No. 1 from raising any further construction over the suit property till final disposal of the suit. Also, prayer clause B in the suit covers the aspect of carrying out construction on the sui
