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2011 DIGILAW 603 (BOM)

Ram Richpal Jain v. Dara Khurshadji Amrolia

2011-06-06

B.R.GAVAI

body2011
Judgment : The petitioner challenges the order dated 24.2.2010 vide which the learned Civil Judge, Junior Division Nashik Road has allowed the application below Ex.17 being MCA No.16/08 filed by the respondent for amendment to the application filed by the respondent-applicant No.16/08 for condonation of delay in filing the application for restoration of RCS No.12/1995. 2. One Dara Khurshedji Amrolia had filed Regular Civil Suit No.370/69 in the Court of learned Civil Judge, Junior Division, Nashik. On the establishment of the Court at Nashik Road said Civil Suit No.370/69 came to be transferred to the Nashik Road and was renumbered as Regular Civil Suit No.12/1995. The said suit was dismissed ex-parte. As such the daughter of the deceased Dara Khurshedji Amrolia viz. Firoza Bomi Anklesaria filed MCA No. 16/2008 for restoration of the suit. An application for condonation of delay in filing application also was filed. In the said application an application below Ex.17 for amendment came to be filed and the same was allowed. Hence the present petition. 3. Mr.Kankaria, learned counsel appearing on behalf of the petitioner submits that the learned trial Court has grossly erred in allowing the application. He submits that the Miscellaneous Civil Application itself is filed beyond 11 years, 7 months and 6 days. It is submitted that the proposed amendment is longer than the original application for condonation of delay and as such it ought not to have been allowed. It is further submitted that the in an application for condonation of delay an application for amendment is not permissible. 4. Learned counsel relies on a judgment of the Apex Court in the case of Gurdial Singh & Ors. Vs. Raj Kumar Aneja & Ors., 2002 AIR SCW 718. 5. Mr.Gorwadkar, learned counsel appearing on behalf of the respondent No.1 on the contrary submits that the learned trial Court has passed the order in its discretionary jurisdiction and as such it warrants no interference. 6. The petition arises out of purely an interlocutory order. Perusal of the impugned order would reveal that by way of amendment certain facts which supported the case of the applicant to justify the delay caused in filing the application for restoration was necessary in order to do justice to the applicant. 7. 6. The petition arises out of purely an interlocutory order. Perusal of the impugned order would reveal that by way of amendment certain facts which supported the case of the applicant to justify the delay caused in filing the application for restoration was necessary in order to do justice to the applicant. 7. This Court in its jurisdiction under Article 227 of the Constitution of India would interfere with the discretion exercised by the learned trial Court, if only if it is found that the said discretion has been exercised in perverse manner. No perversity is noticed in the jurisdiction exercised by the learned trial Court to warrant interference. 8. In so far as the judgment of the Apex Court on which the learned counsel relies on, is concerned, the said judgment would not be applicable to the facts of the present case. The said judgment deals with mode as to how the amendments to the pleadings are to be effected. In that view of the matter petitioner is without substance and as such stands dismissed. Rule is discharged.