VASUDEOBHAI S O JADHAOJI RATHOD Vs. NEELA

JUDGEMENT

(1.) BY this Petition under articles 226 and 227 of the Constitution of india the petitioners/original defendants challenged order dated 6th September, 2004 passed by Second Joint Civil Judge Senior division, Nagpur below Exh. 122 in Special civil Suit No. 354 of 1996 whereby the respondent No. 2 (original plaintiff No. 2) has been permitted to amend the plaint in order to incorporate challenge to alleged Wills executed by one Jodhaoji son of Laddhu rathod, original defendant No. 12. The suit has been made time bound by this Court by its judgment dated 20th April, 2004 delivered in Civil Revision No. 345 of 2000 and the direction was to dispose of the said suit within period of three months excluding period of summer vacation.

(2.) ADV. Rohit Deo appearing for petitioners contends that by amendment an irrelevant plea and claim has been allowed to be added and the said claim has no bearing on original controversy involved in the suit. He contends that the learned Court below while allowing the application for amendment has not considered nature of the suit as filed and the effect of amendment on it. He contends that the trial Court has also not appreciated necessity of amendment in the facts and circumstances of the case before it.

(3.) AS against this, Adv. Kotwal appearing for the original plaintiff No. 2 and respondents herein has contended that the challenge in the suit was very much before the Court and need for amendment is also pointed out by him in his application. He contends that the Court below has found that conjoint reading of the plaint and proposed amendment reveals that there are seeds of proposed amendment in the plaint. He therefore, contends that the Court below has considered the plaint as filed as also amendment and has applied its mind. He contends that the learned trial Court has also considered the law on the point and has allowed the amendment after finding that it is belated. He therefore, contends that no case is made out for interference in writ jurisdiction. He has relied upon the cases which are reported at (1984)1 SCC 668 (Haridas alidas Thadani Vs. Godrej Rustom kermani); (2001)8 SCC 97 : [2001 (4)ALL MR 484 (S. C.)] (Estralla Rubber Vs. Dass Estate (P) Ltd.); (2004)6 SCC 415 : [2004 (5) ALL MR (S. C.) 1022] (Pankaja vs. Yellappa) and (2002)7 SCC 559 : [2002 (4) ALL MR 866 (S. C.)] (Sampath kumar Vs. Ayyakannu) to contend that pleadings are allowed to be amended liberally at pre-trial stage and even if it is found that claim made by amendment time barred, if granting of amendment is really sub-serves ultimate cause of justice to avoid further litigation, amendment must be allowed. He contends that delay as such cannot be a ground for rejecting prayer for amendment. He contends that the test is whether any prejudice is being caused to the other side by allowing the amendment. He contends that the High Court cannot interfere in exercise of discretion by trial Court as there is no serious dereliction of duty or fragrant violation of fundamental principles of law or justice. He contends that nature of the suit is not being altered nor any prejudice is being caused to the respondents/original defendants. He therefore, states that the petition as filed is liable to be dismissed. He has also relied upon the judgment reported at 2001 (3) Mh. L. J. 151: [2001 (3) ALL MR 356] (Mudra Salt and Chem. Vs. Collector, Thane) and AIR 1986 Orissa 133 (Dhirendra Kumar Vs. Rashmani Dei) to contend that while considering amendment application, Court cannot pre-judge merits of the proposed amendment.