PARIKH ASSOCIATES Vs. NAVINBHAI KANTILAL RATHOD

JUDGEMENT

(1.) Invoking Articles 226 and 227 of the Constitution, the petitioner, one of the defendants in pending Special Civil Suit No.305 of 1993, sought to challenge the interlocutory order dated 4.4.2007, below application Exh-197, of learned senior civil Judge, Vadodara, whereby the application of the original plaintiff for amendment of the claim, so as to increase the amount of claim of compensation, is allowed subject to producing the deficit Court fees of Rs. 60,000/-.

(2.) Admittedly, the suit is filed for the relief and with prayers to order specific performance of the contract dated 20th October, 1988 and in the alternative, order refund of the amount with 18% per annum, which was paid by the plaintiff as also compensation of Rs. 90 lacs. By making the application Exh-197, the plaintiff had sought to amend the claim of Rs. 90 lacs to Rs. 8 crores and that application being granted by the impugned order, the petitioner herein has been aggrieved and has moved this Court as aforesaid immediately in the year 2007. Upon issuance of notice, ad interim relief was granted and upon issuance of Rule, ad interim relief was confirmed with the effect that the operation of the impugned order was stayed.

(3.) It was vehemently argued by learned counsel Mr. Nilesh Pandya and learned senior advocate Mr. B.B. Naik appearing for the petitioner that the original plaintiff cannot be permitted to keep on increasing his claim on the basis of the events and the price rise happening after filing of the suit and the further claim for huge additional amount of compensation would be barred by provisions of the Limitation Act. It was also submitted that the application and the claim were not bona fide in view of the alleged fact that the original plaintiff was prolonging the proceeding before the trial Court since filing of the suit, and making repeated applications for increasing the amount of claim of compensation. It was further submitted that claim of compensation had to be restricted on the basis of the facts prevalent at the time of filing of the suit. Learned counsel relied upon judgment of the Supreme Court in South Konkan Distilleries and another vs. Prabhakar Gajanan Naik and another, 2008 14 SCC 632 to submit that one of the cardinal principles of law in allowing or rejecting an application for amendment of the pleading is that the courts generally, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the filing of the application. However, that would be a factor to be taken into account in the exercise of the discretion as to whether the amendment should be allowed, and does not affect the power of the court to allow it, if that is required in the interest of justice.