Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 1246 (BOM)

Shubhada K. Borkar v. Ankush Rajaram Naik (D)

2013-07-05

F.M.REIS

body2013
JUDGMENT Heard Mr. Shivan Desai, learned counsel appearing for the petitioner and Mr. J.E. Coelho Pereira, learned Senior Counsel appearing for respondent no.2. 2. Rule. Heard forth with the consent of the learned counsel. 3. The learned counsel appearing for the respondent no.2 waives service. 4. A short point for consideration in the above Writ Petition is as to whether the learned Trial Judge was justified to pass the order impugned in the present petition dated 31.10.2012 dismissing the application for amendment filed by the petitioner on the ground that such application was not maintainable in the course of the proceedings under Order 21 Rule 97 of CPC. 5. Mr. Desai, learned counsel appearing for the petitioner has pointed out that though Order 6 Rule 17 of CPC may not strictly be applicable to proceedings under Order 21 Rule 97 of CPC, nevertheless, there are ample powers to the Court to grant such amendment in terms of Sections 151 and 153 of CPC. The learned counsel further pointed out that the Appellate Court had remanded the matter to the trial Judge with a specific direction to consider whether the petitioner was entitled to the relief sought in the application for amendment which was pending decision before the learned Trial Court. The learned counsel thereafter has taken me through the impugned order and pointed out that the learned judge has erroneously dismissed the application on the ground that such application was not maintainable under Order 6 Rule 17 of CPC. The learned counsel as such submits that the impugned order deserves to be quashed and set aside. 6. On the other hand, Mr. J.E. Coelho Pereira, learned Senior Counsel appearing for the respondent no.2 has supported the impugned order. The learned Senior Counsel has pointed out that the petitioner is unnecessarily dragging the dispute by raising untenable contentions and as such no interference is called for in the impugned order. The learned Senior Counsel thereafter has pointed out that the application for amendment was not pressed by the petitioner before the learned Trial Court and as such, according to him in view of the averments to that effect, the question of exercising any discretion in favour of the petitioner in the present petition would not arise. The learned Senior Counsel thereafter has pointed out that the application for amendment was not pressed by the petitioner before the learned Trial Court and as such, according to him in view of the averments to that effect, the question of exercising any discretion in favour of the petitioner in the present petition would not arise. The learned Senior Counsel however fairly does not dispute the preposition that the Court has powers to amend the application in terms of Sections 151 and 153 of CPC. The learned Senior Counsel further pointed out that granting of the application for amendment would change the nature of the dispute and as such the question of granting any amendment of the original petition under Order 21 Rule 97 of CPC filed by the petitioner would not arise. 7. I have considered the submissions of the learned counsel and I have also gone through the records. Considering the facts and the contentions of the learned counsel appearing for the petitioner, I find that the learned Judge was not justified to come to the conclusion that he had no powers to amend the petition under Order 21 Rule 97 of CPC. Even assuming Order 6 Rule 17 of CPC is not strictly applicable to such proceedings nevertheless, the learned Judge has ample powers under Sections 151 and 153 of CPC to amend the petition considering that in terms of Rule 101 of Order 21 CPC such questions, if any, arise cannot be determined in a separate suit. 8. With regard to the rival contentions on merits advanced by both the parties, I find that considering the view I propose to take in the matter, such contentions of both the parties would have to be considered by the learned Trial Court after hearing the parties in accordance with law. 9. At this stage, Mr. J.E. Coelho Pereira, learned Senior Counsel appearing for the respondent no.2 submits that in case this Court remands the matter for fresh consideration, the respondent no.2 desires to file an additional affidavit opposing the said application. In such circumstances, the respondents are permitted to tile such additional affidavit and liberty to the petitioner to file rejoinder, if any, on that count. 10. In view of the above, I pass the following: ORDER (i) The impugned order dated 31.1 0.20 12 is quashed and set aside. In such circumstances, the respondents are permitted to tile such additional affidavit and liberty to the petitioner to file rejoinder, if any, on that count. 10. In view of the above, I pass the following: ORDER (i) The impugned order dated 31.1 0.20 12 is quashed and set aside. (ii) The learned Trial Court is directed to decide the application for amendment tiled by the petitioner after hearing the parties in the light of the observations made herein above in accordance with law as expeditiously as possible. (iii) All contentions with that regard raised by both the parties are left open. (iv) Rule is made absolute in above terms. (v) The parties are directed to appear before the learned Trial Court on 5/8/2013 at 10.00 a.m. Ordered accordingly.