IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 2712 OF 2020

Maharashtra State Road Development Corporation Ltd. .. Petitioner

Vs.

Resco Amusement Pvt. Ltd. .. Respondent

….. Mr. Milind Sathe, Senior Counsel a/w Mr. Vinamra Kopariha, Siwach Arun Umed Singh, Ms. Prachi Vasudeo i/b M/s. Cyril Amarchand Mangaldas & Co. for the petitioner Ms. Khushali Samani i/b Solicis Lex for the respondent

…..

CORAM : PRITHVIRAJ K. CHAVAN, J.

DATED : 20th JULY, 2020 (Through Video Conferencing)

P.C.

1. Heard Mr. Milind Sathe, the learned Senior Counsel for the petitioner. The learned Senior Counsel took me through the impugned order wherein the learned Civil Judge, Senior Division, Panvel though had observed that there is a pleading in the plaint in respect of the amendment sought after the commencement of trial, in fact, there is no such pleading in the plaint and, therefore, according

to the learned Counsel, the learned Trial Judge ought not to have allowed the amendment after the commencement of trial.

2. My attention is drawn to a latest order of the Hon'ble Supreme Court passed in the case of Pandit Malhari Mahale Vs. Monika Pandit Mahale & Ors. (passed in Civil Appeal No. 189 of 2020, Special Leave to Appeal (C) No. 5888/2019). It was a suit for partition filed by the respondents i.e. wife and the children of the appellant. After commencement of the evidence, an application of amendment of the plaint was filed by the plaintiff no.3 . Despite objection by the defendant, the learned Civil Judge allowed the application against which the writ petition was filed, which was dismissed.

3. It is observed by the Supreme Court that after commencing the evidence, in view of Order VI Rule 17 of the Civil Procedure Code, 1908, the amendment could not have been considered unless the Court returns a finding that inspite of due diligence, the party could not have raised the matter before the commencement of trial. Thus, there was no finding as contemplated in Order VI Rule 17 proviso and, therefore, the Court ought not to have allowed the amendment.

4. The Supreme Court has reiterated its view in case of Vidyabai & Ors. Vs. Padmalatha & Anr. [(2009) ² SCC 409] wherein the Supreme Court had in paragraph 19 observed as under :-

"19. It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to order 6 Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint."

The ratio laid down by the Supreme Court is squarely applicable to the present set of facts as the learned Trial Court appears to have turned a Nelson's eye qua the jurisdictional fact resulting into the impugned order.

5. Ms. Khushali Samani, the learned Counsel appearing for respondent no.1 seeks an adjournment on the ground that the learned Counsel representing respondent no.1 is in some personal difficulty. In order to facilitate the respondent no.1 to file its reply, stand over to 6th August, 2020.

6. The parties are put to notice that the petition shall be disposed of finally at the stage of admission.

7. In the meanwhile, there shall be stay to the implementation of the impugned order dated 6th August, 2020 passed by the learned Civil Judge, Senior Division, Panvel in Special Civil Suit No. 348 of 2016.

8. This order shall be digitally signed by the Private Secretary of this Court. All concerned shall act on production by fax or e-mail of a digitally signed copy of this order.

(PRITHVIRAJ K. CHAVAN, J.)