As noted earlier, in the present case, there is no question of
either substitution of the defendant or addition of the defendant.
The only amendment is about description of the plaintiff and
incorporation of paragraph 1(a) which is clarificatory in nature.
In my opinion, this case does not advance the case of the
defendant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3130 OF 2010
M/s Hindustan Computers Vs M/s Dart Computers Ltd
CORAM : R.G.KETKAR, J.
DATE : 28/01/2013
Citation;2014(1) ALLMR841
1. Heard Mr. Uday Malte, learned counsel for the petitioner
and Mr. Anilkumar, learned counsel for the respondents at length.
2. By this petition under Articles 226 and 227 of the
Constitution of India, the petitioner, hereinafter referred to as
'plaintiff' has challenged the Judgment and order dated
11.2.2010 passed by the Civil Judge (Sr.Dn), Malegaon, below
Exhibit-49 in Special Civil Suit No.76 of 2004. By that order, the
learned trial Judge rejected the application taken out by the
plaintiff for amending the Plaint.
3. The plaintiff-M/s Hindustan Computers instituted Special
Civil Suit No.76 of 2004 on 4.9.2004 for recovery of
Rs.44,81,820/- from the respondents, hereinafter referred to as
'defendants'. The plaintiff was sued as under:-
“M/s.Hindustan Computers, Through – Upendra lad,
Age 39 years, Occ: Business.”
The defendants resisted the suit by filing Written Statement on
30.10.2004. Issues were framed on 28.10.2005. On 19.6.2009
the plaintiff filed application for amendment of the Plaint. The
plaintiff proposed amendment in the description of the suit as
under :
(a) After “M/s Hindustan Compueters” and
before “Upendra” following words be added in
place of “Through”-
“Proprietary concern, Proprietor Mrs Neeta
Upendra Lad represented by General Power of
Attorney Holder”
(b) After word “Business”, “and Service”
words be added.”
The plaintiff also proposed to add para-1 (a) after para-1 of the
Plaint, which reads as under :
“1(a) The plaintiff Hindustan Computers is the
Proprietary concern and Mrs Neeta Upendra
Lad who is wife of Mr Upendra Devendra Lad,
is a proprietor of Hindustan Computers. Mr
Upendra Devendra Lad as a General Power of
Attorney holder for Hindustan Computers
renders help to deal with all business
transactions of Hindustan Computers. Even at
the time of negotiations with present
defendants, Mr Upendra Devendra lad has
assisted in negotiating with defendants. The
agreement dated 20.2.2003 and subsequent
cancellation agreement dated 11.7.2003 have
been also executed between the plaintiff and
defendants on which Mr Upendra Devendra
Lad has put his signature on behalf of plaintiff
on the request by the proprietor. The
proprietor of Hindustan Computers Mrs Neeta
Upendra Lad has executed General Power of
Attorney in favour of husband Mr Upendra
Devendra Lad on 16.10.2002 and such
General Power of Attorney is also notarized
with the Notary. Mr Upendra Devendra Lad
personally has knowledge of all the dealings of
Hindustan Computers. Mr Upendra Devendra
Lad witnessed and participated in all
transactions and dealing with the present
defendants, and as such, he is filing the
present suit in his capacity as a General Power
of Attorney Holder of Mrs Neeta Upendra lad
for and on behalf of Hindustan Computers.”
The defendants resisted the application by filing reply dated
7.8.2009. By the impugned order, the learned trial Judge rejected
the application. It is against this order, the plaintiff has instituted
the present petition under Articles 226 and 227 of the
Constitution of India.
4. The petition was admitted by issuing Rule on 20.10.2010
and ad-interim relief in terms of prayer clause (B) was confined to
the stay of the suit.
5. In support of this petition, Mr. Malte invited my attention to
the copy of the Plaint in Special Civil Suit No.76 of 2004 and in
particular description of the plaintiff. He also invited my attention
to the application for amendment made by the plaintiff on
19.6.2010. He submitted that the learned trial Judge rejected the
application on the following grounds:
(i) The application for amendment was made belatedly;
(ii) The proposed amendment is likely to change the
nature of the suit and also adversely affect the right of the
defendants;
(iii) The proposed amendment will hit the suit by law of
limitation and
(iv) The trial of the suit has already commenced.
6. Mr.Malte submitted that the reasons given by the learned
trial Judge while rejecting the application for amendment are
wholly unsustainable. In so far as the ground nos.(i) and (iv) for
rejecting the application are concerned, he submitted that the
trial is yet to commence. In other words, he submitted that Issues
were framed on 28.10.2005 and the plaintiff is yet to file his
affidavit of evidence in lieu of Examination-in-chief. He
submitted that the Apex Court in the case of Vidyabai and Ors Vs.
Padmalata and Anr, 2009 (4) MH.L.J. 730 has observed in
paragraph 8 that the date on which the issues are framed is the
date of first hearing and the date on which the affidavit in lieu of
examination in-chief is filed by the witness is the date of
commencement of the proceedings. He, therefore, submitted
that the trial is yet to commence. The learned trial Judge has
committed serious error in recording finding that the amendment
proposed is absolutely belated. The ground no.(ii) for rejecting
the application is that the proposed amendment is likely to
change the nature of the suit. He submitted that by giving
description of the plaintiff, the nature of the suit has not
changed. The amendment proposed by adding paragraph 1(a) is
clarificatory in nature and therefore the learned trial Judge has
committed serious error in coming to the conclusion that the
proposed amendment is likely to change the nature of the suit
and consequently is likely to adversely affect the right of the
defendants. In so far as ground no.(iii) for rejecting the
application is concerned, the learned trial Judge held that the
proposed amendment is hit by law of limitation. However, no
reasons have been assigned for arriving at his conclusion. He
submitted that if at all the amendment application is moved
belatedly yet before commencement of the trial, the learned trial
Judge could have imposed costs on the plaintiff before allowing
the application for amendment. He, therefore, submitted that the
impugned order deserves to be quashed and set aside, thereby
allowing the application made by the plaintiff for amendment of
the application.
7. On the other hand, Mr Anilkumar supported the impugned
order. He invited my attention to the Plaint in Special Civil Suit
No.76 of 2004 and the description of the plaintiff as also the
verification made by Shri Upendra Lad. He submitted that in the
entire body of the Plaint, there is no whisper as to in what
capacity Mr Lad is representing the plaintiff M/s Hindustan
Computers. He also invited my attention to the verification made
in the present petition and submitted Mr Upendra Lad could not
have verified the petition in this manner.
8. Mr Anilkumar invited my attention to the following
documents:
(i) Application made by defendants under Order IX Rule 8,
Order VII Rule 11 read with Section 9-A of C.P.C for dismissal of
the suit and in particular paragraphs 6 and 8 thereof.
(ii) Agreement dated 19.2.2003 executed between defendant
no.1 and plaintiff at Nagpur wherein M/s Hindustan Computers is
represented through Proprietor Shri Upendra Lad;
(iii) Notices dated 22.3.2003, 8.12.2003, 22.3.2004, 1.4.2004,
7.5.2004, 11.5.2004, 11.5.2004, 20.5.2004, 25.5.2005 issued
through Advocate Shri J.K. Patil, wherein Mr Upendra D Lad is
shown as Proprietor of Hindustan Computers;
(iv) Notice dated 5.8.2004 issued by Shri L.B.Kulkarni Advocate
wherein Shri Upendra Lad is shown as proprietor of Hindustan
Computers;
(v) Affidavit of evidence in lieu of examination in chief in
Summary Case No.1419 of 2002 wherein Shri Upendra Lad is
described as proprietor of Hindustan Computers.
(vi) Cross-examination in that case, wherein Upendra D.Lad has
deposed as under ; “It is not true to say that I am deposing
falsely that I am owner of M/s Hindustan Computers”.
(vii) Statement of defendant no.2 who was accused in Criminal
Case No.1419 of 2004 recorded under section 313 of Cr. P.C.
(viii) Findings recorded by the learned Magistrate while disposing
of Criminal Case on 22.1.2008.
(ix) General Power of Attorney dated 16.10.2002 executed by
Hindustan Computers through its proprietor Ms Neeta Upendra
Lad in favour of Upendra Lad and the discrepancy in the Power of
Attorney.
9. Mr.Anilkumar also invited my attention to Order 3 Rule 2 of
CPC dealing with “Rcognized agents”. He submitted that the
plaintiff had instituted suit on 4.9.2004 and the defendants filed
written statement on 30.10.2004. Issues were framed on
28.10.2005 and the matter was adjourned for the plaintiff to file
affidavit of evidence. The matter was adjourned at the instance
of the plaintiff who did not take steps to file affidavit on more
than 31 occasions. It is in these circumstances the defendants
filed Exhibit-42 on 18.12.2008 for dismissal of the suit. The
matter was adjourned for filing reply to the application filed by
the defendants and thereafter the present application was filed
by the plaintiff after five years of filing of the suit and after about
four years of framing of the issues and about 18 months after
the judgment of the learned Magistrate. He, therefore, submitted
that the learned trial Judge has rightly rejected the application
having regard to the conduct of the plaintiff and, therefore, no
interference is called for at the hands of this Court.
10. In support of these submissions, he relied upon the
following judgments:
(i) Jammu and Kashmir Bank Ltd Vs. Ghulam Rasul
Naquishbandi, AIR 1958 Jammu and Kashmir 20,
(ii) Ram Prasad Dagaduram Vs. Vijaykumar Motilal
Hirakhanwala, AIR 1967 SC 278, in particular paragraphs 16
and 17 thereof.
11. I have considered the submissions made by the learned
counsel appearing for the parties. I have also perused the
material on record.
12. As noted earlier, the learned trial Judge has rejected the
application for amendment on four grounds :
(i) The application for amendment was made belatedly;
(ii) The proposed amendment is likely to change the nature of
the suit and also adversely affect the right of the defendants;
(iii). The proposed amendment will hit the suit by law of
limitation and
(iv) The trial of the suit has already been commenced.
13. In so far as ground no.9i) and (iv) are concerned, the
learned trial Judge has held that the application for amendment
was belatedly moved. Even accepting the application was
belatedly moved, the learned trial Judge could have considered
imposition of costs if the trial has not commenced. The learned
trial Judge was of the view that though these facts were within
the knowledge of the plaintiff, Ms Neeta Lad and her husband
Upendra D. Lad, the application should not have been moved
belatedly. The reason given by the learned trial Court for
rejecting the application for amendment on the ground of delay,
cannot be upheld as no prejudice is shown to have been caused
to the defendants. Having regard to the nature of the proposed
amendment, quoted herein above, the learned trial Judge should
not have refused the amendment. The learned trial Judge also
wrongly came to the conclusion that the proposed amendment is
likely to change the nature of the suit. The suit instituted by M/s
Hindustan Computers and the prayers are also one and the
same. The only amendment about description of plaintiff and
paragraph 1(a), in my opinion, is of clarificatory in nature. The
reason given by the learned trial Judge is that the proposed
amendment is likely to change the nature of the suit and
consequently adversely affect the rights of the defendants and
therefore cannot be sustained.
14. The learned trial Judge rejected the amendment on the
ground that the proposed amendment will be barred by law of
limitation. However, no reason is given in support of this finding. I
refrain to go into this aspect in view of the order which I propose
to make. The learned trial Judge has finally held that the trial has
already commenced.
15. It is not in dispute that the plaintiff has not filed affidavit of
evidence in lieu of examination-in-chief. In view of the Judgment
of the Apex Court in the case of Vidyabai (supra), in my opinion,
the learned trial Judge has committed error in coming to the
conclusion that the trial has already commenced. The reasons for
rejecting the application for amendment, therefore, cannot be
sustained.
16. Mr. Anilkumar relied upon the Judgment in the case of
Jammu and Kashmir Bank Ltd (supra). In that case, the
appellant-Jammu and Kashmir Bank Ltd instituted a suit for
recovery of Rs.2962-12-6 on the basis of a Pronote dated
12.6.1945 executed by one Ghulam Rasul Naqishbandi in favour
of the plaintiff bank. Summons were issued to Ghulam Rasul
Naqishbandi s/o Ahad Shah Naqishbandi. He contested the suit.
Issues were framed and while the plaintiff's witness was being
cross-examined it transpired that the person intended to be sued
was not the one who was before the court. The plaintiff,
therefore, made application for summoning the real defendant.
The plaintiff was ordered to amend the plaint and another
application was made by the plaintiff that proceedings against
Kh. Ghulam Rasul Naqishbandi s/of Kh Ahad Shah who was before
the Court be discharged and summons be issued against the real
defendant Ghulam Rasul Naqishbandi s/o Mahmud Shah
Naqishbandi. The trial Court issued summons to the new
defendant in accordance with the prayer made by the plaintiff.
Ghulam Rasul Naqishbandi son of Mahmud Shah appeared before
the Court and pleaded that the suit against him was barred by
limitation. This plea found favour with the trial Court and the
plaintiff's suit was dismissed. It was in that context the High
Court observed that the suit was brought against the real
defendant not on 23.4.1951 but on 27.2.1952 and the plaintiff's
claim for interest which accrued during the year 1945 was barred
by time and could not be recovered from the defendant.
Accordingly, the suit of the plaintiff was partly decreed.
17. In the present case, there is no question of substitution of
the defendant. But it is merely description of the plaintiff with a
clarificatory paragraph. I am, therefore, of the opinion that the
judgment in the case of Jammu and Kashmir Bank Ltd (supra)
does not advance the case of the defendant.
18. Mr Anilkumar also relied upon the Judgment of the apex
Court in the case of Ram Prasad Dagaduram (supra). In that case,
Vijaykumar instituted the suit on the ground that he was adopted
by Tarabai on 16.7.1948 as a son to her deceased husband
Motilal Hirakhanwala and, therefore, became entitled to enforce
the mortgage as her sole heir on her death on 23.4.1952. The
suit was instituted on 9.2.1954 to enforce a mortgage which was
executed by the appellant before the Apex Court on 13.12.1934
in favour of Tarabai, the proprietor of the firm of Narayandas
Chunilal. The appellant resisted the suit and denied that
Vijaykumar was adopted by Tarabai. It was stated that Tarabai
died leaving behind three daughters, viz., Rajkumari, Premkumari
and Mahabalkumari, the mother of Vijaykumar, as her heirs. It
was denied that Vijay Kumar had a right to enforce the
mortgage. The learned District Judge held that the adoption of
Vijay Kumar was not established and hence dismissed the suit.
Aggrieved by the decision, Vijaykumar preferred an appeal in the
High Court of Hyderabad which was transferred to High Court of
Bombay. Pending that appeal, Vijaykumar made an application in
appeal on 3.11.1958 for an order adding his mother
Mahabalkumari as a co-plaintiff with him as she was willing to be
so added, and her sisters Rajkumari and Premkumari who were
not available for joining in the suit as plaintiffs, as defendants. He
also sought permission to add a new paragraph to the Plaint, in
which after reiterating his right to enforce the mortgage as the
adopted son of Motilal and Tarabai, he stated. 'In case, however,
the plaintiff's adoption is held not to be proved or not to be valid,
the estate of Motilal and Tarabai Hirakhanwala and of M/s
Narayandas Chunilal will vest in Tarabai's three daughters, viz.,
Rajkumari, Premkumari and Mahabalkumari'. The prayers in the
Plaint were also sought to be amended by asking that the decree
sought might be passed in favour of Vijaykumar and
Mahabalkumari. The said application was opposed by the
appellant and the same was allowed by this Court.
Mahabalkumari was added as an appellant and Rajkumari and
Premkumari as respondents. Premkumari filed a written
statement denying the adoption of Vijay Kumar and his right to
enforce the mortgage. Rajkumari never appeared in the
proceedings arising out of the suit. The appeal was, thereafter,
allowed by the High Court. The High Court refused to go into the
question of adoption and passed a preliminary mortgage decree
for foreclosure in favour of Mahabalkumari, Rajkumari and
Premkumari and further directed that the suit as brought by Vijay
Kumar would stand dismissed.
Hon'ble Mr Justice A.K.Sarkar, C.J., observed in paragraph 4
that sub rule (1) of Order 1, rule 10, however, cannot justify the
order of addition of parties, for it only permits addition of a
plaintiff and does not provide for the addition of a defendant
while the order directs addition of both a plaintiff and two
defendants. The addition of Mahabalkumari as a plaintiff could
not be made under the sub-rule unless it was necessary for the
determination of the real matter in dispute. Adding her as a
plaintiff would have availed nothing unless Rajkumari and
Premkumari were also added as defendants, and that could not
be done under the sub-rule. No decree could have been passed
in her favour alone if the case of adoption failed, for she would
then be entitled to the mortgagee's right along with her sisters.
The addition of Mahablakumari as plaintiff only would have been
futile; it would not have helped in the decision of any matter in
dispute.
In paragraph 5, it was further observed that sub rule (2) of
Order I, Rule 10 permits the addition of both plaintiffs and
defendants in certain circumstances. The order, however, was
not sought to be justified under that provision in view of Section
22 of the Limitation Act. The suit as regards the parties added
under this sub-rule had to be deemed to have been instituted
when they were added. It was not in dispute in that case that a
suit filed on the date when the three sisters were added, to
enforce the mortgage would have been barred. The addition of
Rajkumari and Premkumari as defendants should not have been
ordered in view of the bar of limitation and such addition would
not have resulted in any decree being passed.
In paragraph 9, it was observed that the order adding
parties was not supportable and if that order goes, the decree
which is in favour of the added parties cannot stand, for they are
then strangers to the suit. As there was no decree in favour of
Vijay Kumar and as in fact the suit considered as brought by him
has been dismissed by the courts below and there is no appeal
by him, the appeal was allowed. Hon'ble Mr Justice Bachwat, in a
separate but concurring judgment, observed in paragraph 15
that admittedly the name of the original plaintiff was not a misdescription
of the names of Tarabai's daughters. It was also not a
case where a wrong defendant was sued as representing the
estate of a deceased person and subsequently the real
representative is added as a defendant. In paragraph 20 it was
observed that as regards Mahabalkumari, Rajkumari and
Premkumari the suit must be regarded as instituted on
4.11.1958. As far as they are concerned, the suit was barred by
limitation and no decree can be passed in their favour. The
decree passed by the High Court in their favour was not
sustained and was set aside. It is in that context the Apex Court
allowed the appeal and the decree passed by the High Court in
favour of Mahabalkumari, Rajkumari and Premkumari was set
aside and the decree passed by the trial Court was restored.
19. As noted earlier, in the present case, there is no question of
either substitution of the defendant or addition of the defendant.
The only amendment is about description of the plaintiff and
incorporation of paragraph 1(a) which is clarificatory in nature.
In my opinion, this case does not advance the case of the
defendant.
20. In view of the above, the impugned order cannot be
sustained and the same is liable to be quashed and set aside.
Rule is made absolute in terms of prayer clause (A) with no order
as to costs.
21. The application for amendment at Exhibit 49 in Suit No.74
of 2004 is allowed. The plaintiff shall carry out amendment
within four weeks from today. The defendants are at liberty to file
addition Written Statement within two weeks from service of
copy of the amended Plaint. It is, however, clarified that issue of
limitation is kept open.
(R.G.KETKAR, J.)
either substitution of the defendant or addition of the defendant.
The only amendment is about description of the plaintiff and
incorporation of paragraph 1(a) which is clarificatory in nature.
In my opinion, this case does not advance the case of the
defendant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3130 OF 2010
M/s Hindustan Computers Vs M/s Dart Computers Ltd
CORAM : R.G.KETKAR, J.
DATE : 28/01/2013
Citation;2014(1) ALLMR841
1. Heard Mr. Uday Malte, learned counsel for the petitioner
and Mr. Anilkumar, learned counsel for the respondents at length.
2. By this petition under Articles 226 and 227 of the
Constitution of India, the petitioner, hereinafter referred to as
'plaintiff' has challenged the Judgment and order dated
11.2.2010 passed by the Civil Judge (Sr.Dn), Malegaon, below
Exhibit-49 in Special Civil Suit No.76 of 2004. By that order, the
learned trial Judge rejected the application taken out by the
plaintiff for amending the Plaint.
3. The plaintiff-M/s Hindustan Computers instituted Special
Civil Suit No.76 of 2004 on 4.9.2004 for recovery of
Rs.44,81,820/- from the respondents, hereinafter referred to as
'defendants'. The plaintiff was sued as under:-
“M/s.Hindustan Computers, Through – Upendra lad,
Age 39 years, Occ: Business.”
The defendants resisted the suit by filing Written Statement on
30.10.2004. Issues were framed on 28.10.2005. On 19.6.2009
the plaintiff filed application for amendment of the Plaint. The
plaintiff proposed amendment in the description of the suit as
under :
(a) After “M/s Hindustan Compueters” and
before “Upendra” following words be added in
place of “Through”-
“Proprietary concern, Proprietor Mrs Neeta
Upendra Lad represented by General Power of
Attorney Holder”
(b) After word “Business”, “and Service”
words be added.”
The plaintiff also proposed to add para-1 (a) after para-1 of the
Plaint, which reads as under :
“1(a) The plaintiff Hindustan Computers is the
Proprietary concern and Mrs Neeta Upendra
Lad who is wife of Mr Upendra Devendra Lad,
is a proprietor of Hindustan Computers. Mr
Upendra Devendra Lad as a General Power of
Attorney holder for Hindustan Computers
renders help to deal with all business
transactions of Hindustan Computers. Even at
the time of negotiations with present
defendants, Mr Upendra Devendra lad has
assisted in negotiating with defendants. The
agreement dated 20.2.2003 and subsequent
cancellation agreement dated 11.7.2003 have
been also executed between the plaintiff and
defendants on which Mr Upendra Devendra
Lad has put his signature on behalf of plaintiff
on the request by the proprietor. The
proprietor of Hindustan Computers Mrs Neeta
Upendra Lad has executed General Power of
Attorney in favour of husband Mr Upendra
Devendra Lad on 16.10.2002 and such
General Power of Attorney is also notarized
with the Notary. Mr Upendra Devendra Lad
personally has knowledge of all the dealings of
Hindustan Computers. Mr Upendra Devendra
Lad witnessed and participated in all
transactions and dealing with the present
defendants, and as such, he is filing the
present suit in his capacity as a General Power
of Attorney Holder of Mrs Neeta Upendra lad
for and on behalf of Hindustan Computers.”
The defendants resisted the application by filing reply dated
7.8.2009. By the impugned order, the learned trial Judge rejected
the application. It is against this order, the plaintiff has instituted
the present petition under Articles 226 and 227 of the
Constitution of India.
4. The petition was admitted by issuing Rule on 20.10.2010
and ad-interim relief in terms of prayer clause (B) was confined to
the stay of the suit.
5. In support of this petition, Mr. Malte invited my attention to
the copy of the Plaint in Special Civil Suit No.76 of 2004 and in
particular description of the plaintiff. He also invited my attention
to the application for amendment made by the plaintiff on
19.6.2010. He submitted that the learned trial Judge rejected the
application on the following grounds:
(i) The application for amendment was made belatedly;
(ii) The proposed amendment is likely to change the
nature of the suit and also adversely affect the right of the
defendants;
(iii) The proposed amendment will hit the suit by law of
limitation and
(iv) The trial of the suit has already commenced.
6. Mr.Malte submitted that the reasons given by the learned
trial Judge while rejecting the application for amendment are
wholly unsustainable. In so far as the ground nos.(i) and (iv) for
rejecting the application are concerned, he submitted that the
trial is yet to commence. In other words, he submitted that Issues
were framed on 28.10.2005 and the plaintiff is yet to file his
affidavit of evidence in lieu of Examination-in-chief. He
submitted that the Apex Court in the case of Vidyabai and Ors Vs.
Padmalata and Anr, 2009 (4) MH.L.J. 730 has observed in
paragraph 8 that the date on which the issues are framed is the
date of first hearing and the date on which the affidavit in lieu of
examination in-chief is filed by the witness is the date of
commencement of the proceedings. He, therefore, submitted
that the trial is yet to commence. The learned trial Judge has
committed serious error in recording finding that the amendment
proposed is absolutely belated. The ground no.(ii) for rejecting
the application is that the proposed amendment is likely to
change the nature of the suit. He submitted that by giving
description of the plaintiff, the nature of the suit has not
changed. The amendment proposed by adding paragraph 1(a) is
clarificatory in nature and therefore the learned trial Judge has
committed serious error in coming to the conclusion that the
proposed amendment is likely to change the nature of the suit
and consequently is likely to adversely affect the right of the
defendants. In so far as ground no.(iii) for rejecting the
application is concerned, the learned trial Judge held that the
proposed amendment is hit by law of limitation. However, no
reasons have been assigned for arriving at his conclusion. He
submitted that if at all the amendment application is moved
belatedly yet before commencement of the trial, the learned trial
Judge could have imposed costs on the plaintiff before allowing
the application for amendment. He, therefore, submitted that the
impugned order deserves to be quashed and set aside, thereby
allowing the application made by the plaintiff for amendment of
the application.
7. On the other hand, Mr Anilkumar supported the impugned
order. He invited my attention to the Plaint in Special Civil Suit
No.76 of 2004 and the description of the plaintiff as also the
verification made by Shri Upendra Lad. He submitted that in the
entire body of the Plaint, there is no whisper as to in what
capacity Mr Lad is representing the plaintiff M/s Hindustan
Computers. He also invited my attention to the verification made
in the present petition and submitted Mr Upendra Lad could not
have verified the petition in this manner.
8. Mr Anilkumar invited my attention to the following
documents:
(i) Application made by defendants under Order IX Rule 8,
Order VII Rule 11 read with Section 9-A of C.P.C for dismissal of
the suit and in particular paragraphs 6 and 8 thereof.
(ii) Agreement dated 19.2.2003 executed between defendant
no.1 and plaintiff at Nagpur wherein M/s Hindustan Computers is
represented through Proprietor Shri Upendra Lad;
(iii) Notices dated 22.3.2003, 8.12.2003, 22.3.2004, 1.4.2004,
7.5.2004, 11.5.2004, 11.5.2004, 20.5.2004, 25.5.2005 issued
through Advocate Shri J.K. Patil, wherein Mr Upendra D Lad is
shown as Proprietor of Hindustan Computers;
(iv) Notice dated 5.8.2004 issued by Shri L.B.Kulkarni Advocate
wherein Shri Upendra Lad is shown as proprietor of Hindustan
Computers;
(v) Affidavit of evidence in lieu of examination in chief in
Summary Case No.1419 of 2002 wherein Shri Upendra Lad is
described as proprietor of Hindustan Computers.
(vi) Cross-examination in that case, wherein Upendra D.Lad has
deposed as under ; “It is not true to say that I am deposing
falsely that I am owner of M/s Hindustan Computers”.
(vii) Statement of defendant no.2 who was accused in Criminal
Case No.1419 of 2004 recorded under section 313 of Cr. P.C.
(viii) Findings recorded by the learned Magistrate while disposing
of Criminal Case on 22.1.2008.
(ix) General Power of Attorney dated 16.10.2002 executed by
Hindustan Computers through its proprietor Ms Neeta Upendra
Lad in favour of Upendra Lad and the discrepancy in the Power of
Attorney.
9. Mr.Anilkumar also invited my attention to Order 3 Rule 2 of
CPC dealing with “Rcognized agents”. He submitted that the
plaintiff had instituted suit on 4.9.2004 and the defendants filed
written statement on 30.10.2004. Issues were framed on
28.10.2005 and the matter was adjourned for the plaintiff to file
affidavit of evidence. The matter was adjourned at the instance
of the plaintiff who did not take steps to file affidavit on more
than 31 occasions. It is in these circumstances the defendants
filed Exhibit-42 on 18.12.2008 for dismissal of the suit. The
matter was adjourned for filing reply to the application filed by
the defendants and thereafter the present application was filed
by the plaintiff after five years of filing of the suit and after about
four years of framing of the issues and about 18 months after
the judgment of the learned Magistrate. He, therefore, submitted
that the learned trial Judge has rightly rejected the application
having regard to the conduct of the plaintiff and, therefore, no
interference is called for at the hands of this Court.
10. In support of these submissions, he relied upon the
following judgments:
(i) Jammu and Kashmir Bank Ltd Vs. Ghulam Rasul
Naquishbandi, AIR 1958 Jammu and Kashmir 20,
(ii) Ram Prasad Dagaduram Vs. Vijaykumar Motilal
Hirakhanwala, AIR 1967 SC 278, in particular paragraphs 16
and 17 thereof.
11. I have considered the submissions made by the learned
counsel appearing for the parties. I have also perused the
material on record.
12. As noted earlier, the learned trial Judge has rejected the
application for amendment on four grounds :
(i) The application for amendment was made belatedly;
(ii) The proposed amendment is likely to change the nature of
the suit and also adversely affect the right of the defendants;
(iii). The proposed amendment will hit the suit by law of
limitation and
(iv) The trial of the suit has already been commenced.
13. In so far as ground no.9i) and (iv) are concerned, the
learned trial Judge has held that the application for amendment
was belatedly moved. Even accepting the application was
belatedly moved, the learned trial Judge could have considered
imposition of costs if the trial has not commenced. The learned
trial Judge was of the view that though these facts were within
the knowledge of the plaintiff, Ms Neeta Lad and her husband
Upendra D. Lad, the application should not have been moved
belatedly. The reason given by the learned trial Court for
rejecting the application for amendment on the ground of delay,
cannot be upheld as no prejudice is shown to have been caused
to the defendants. Having regard to the nature of the proposed
amendment, quoted herein above, the learned trial Judge should
not have refused the amendment. The learned trial Judge also
wrongly came to the conclusion that the proposed amendment is
likely to change the nature of the suit. The suit instituted by M/s
Hindustan Computers and the prayers are also one and the
same. The only amendment about description of plaintiff and
paragraph 1(a), in my opinion, is of clarificatory in nature. The
reason given by the learned trial Judge is that the proposed
amendment is likely to change the nature of the suit and
consequently adversely affect the rights of the defendants and
therefore cannot be sustained.
14. The learned trial Judge rejected the amendment on the
ground that the proposed amendment will be barred by law of
limitation. However, no reason is given in support of this finding. I
refrain to go into this aspect in view of the order which I propose
to make. The learned trial Judge has finally held that the trial has
already commenced.
15. It is not in dispute that the plaintiff has not filed affidavit of
evidence in lieu of examination-in-chief. In view of the Judgment
of the Apex Court in the case of Vidyabai (supra), in my opinion,
the learned trial Judge has committed error in coming to the
conclusion that the trial has already commenced. The reasons for
rejecting the application for amendment, therefore, cannot be
sustained.
16. Mr. Anilkumar relied upon the Judgment in the case of
Jammu and Kashmir Bank Ltd (supra). In that case, the
appellant-Jammu and Kashmir Bank Ltd instituted a suit for
recovery of Rs.2962-12-6 on the basis of a Pronote dated
12.6.1945 executed by one Ghulam Rasul Naqishbandi in favour
of the plaintiff bank. Summons were issued to Ghulam Rasul
Naqishbandi s/o Ahad Shah Naqishbandi. He contested the suit.
Issues were framed and while the plaintiff's witness was being
cross-examined it transpired that the person intended to be sued
was not the one who was before the court. The plaintiff,
therefore, made application for summoning the real defendant.
The plaintiff was ordered to amend the plaint and another
application was made by the plaintiff that proceedings against
Kh. Ghulam Rasul Naqishbandi s/of Kh Ahad Shah who was before
the Court be discharged and summons be issued against the real
defendant Ghulam Rasul Naqishbandi s/o Mahmud Shah
Naqishbandi. The trial Court issued summons to the new
defendant in accordance with the prayer made by the plaintiff.
Ghulam Rasul Naqishbandi son of Mahmud Shah appeared before
the Court and pleaded that the suit against him was barred by
limitation. This plea found favour with the trial Court and the
plaintiff's suit was dismissed. It was in that context the High
Court observed that the suit was brought against the real
defendant not on 23.4.1951 but on 27.2.1952 and the plaintiff's
claim for interest which accrued during the year 1945 was barred
by time and could not be recovered from the defendant.
Accordingly, the suit of the plaintiff was partly decreed.
17. In the present case, there is no question of substitution of
the defendant. But it is merely description of the plaintiff with a
clarificatory paragraph. I am, therefore, of the opinion that the
judgment in the case of Jammu and Kashmir Bank Ltd (supra)
does not advance the case of the defendant.
18. Mr Anilkumar also relied upon the Judgment of the apex
Court in the case of Ram Prasad Dagaduram (supra). In that case,
Vijaykumar instituted the suit on the ground that he was adopted
by Tarabai on 16.7.1948 as a son to her deceased husband
Motilal Hirakhanwala and, therefore, became entitled to enforce
the mortgage as her sole heir on her death on 23.4.1952. The
suit was instituted on 9.2.1954 to enforce a mortgage which was
executed by the appellant before the Apex Court on 13.12.1934
in favour of Tarabai, the proprietor of the firm of Narayandas
Chunilal. The appellant resisted the suit and denied that
Vijaykumar was adopted by Tarabai. It was stated that Tarabai
died leaving behind three daughters, viz., Rajkumari, Premkumari
and Mahabalkumari, the mother of Vijaykumar, as her heirs. It
was denied that Vijay Kumar had a right to enforce the
mortgage. The learned District Judge held that the adoption of
Vijay Kumar was not established and hence dismissed the suit.
Aggrieved by the decision, Vijaykumar preferred an appeal in the
High Court of Hyderabad which was transferred to High Court of
Bombay. Pending that appeal, Vijaykumar made an application in
appeal on 3.11.1958 for an order adding his mother
Mahabalkumari as a co-plaintiff with him as she was willing to be
so added, and her sisters Rajkumari and Premkumari who were
not available for joining in the suit as plaintiffs, as defendants. He
also sought permission to add a new paragraph to the Plaint, in
which after reiterating his right to enforce the mortgage as the
adopted son of Motilal and Tarabai, he stated. 'In case, however,
the plaintiff's adoption is held not to be proved or not to be valid,
the estate of Motilal and Tarabai Hirakhanwala and of M/s
Narayandas Chunilal will vest in Tarabai's three daughters, viz.,
Rajkumari, Premkumari and Mahabalkumari'. The prayers in the
Plaint were also sought to be amended by asking that the decree
sought might be passed in favour of Vijaykumar and
Mahabalkumari. The said application was opposed by the
appellant and the same was allowed by this Court.
Mahabalkumari was added as an appellant and Rajkumari and
Premkumari as respondents. Premkumari filed a written
statement denying the adoption of Vijay Kumar and his right to
enforce the mortgage. Rajkumari never appeared in the
proceedings arising out of the suit. The appeal was, thereafter,
allowed by the High Court. The High Court refused to go into the
question of adoption and passed a preliminary mortgage decree
for foreclosure in favour of Mahabalkumari, Rajkumari and
Premkumari and further directed that the suit as brought by Vijay
Kumar would stand dismissed.
Hon'ble Mr Justice A.K.Sarkar, C.J., observed in paragraph 4
that sub rule (1) of Order 1, rule 10, however, cannot justify the
order of addition of parties, for it only permits addition of a
plaintiff and does not provide for the addition of a defendant
while the order directs addition of both a plaintiff and two
defendants. The addition of Mahabalkumari as a plaintiff could
not be made under the sub-rule unless it was necessary for the
determination of the real matter in dispute. Adding her as a
plaintiff would have availed nothing unless Rajkumari and
Premkumari were also added as defendants, and that could not
be done under the sub-rule. No decree could have been passed
in her favour alone if the case of adoption failed, for she would
then be entitled to the mortgagee's right along with her sisters.
The addition of Mahablakumari as plaintiff only would have been
futile; it would not have helped in the decision of any matter in
dispute.
In paragraph 5, it was further observed that sub rule (2) of
Order I, Rule 10 permits the addition of both plaintiffs and
defendants in certain circumstances. The order, however, was
not sought to be justified under that provision in view of Section
22 of the Limitation Act. The suit as regards the parties added
under this sub-rule had to be deemed to have been instituted
when they were added. It was not in dispute in that case that a
suit filed on the date when the three sisters were added, to
enforce the mortgage would have been barred. The addition of
Rajkumari and Premkumari as defendants should not have been
ordered in view of the bar of limitation and such addition would
not have resulted in any decree being passed.
In paragraph 9, it was observed that the order adding
parties was not supportable and if that order goes, the decree
which is in favour of the added parties cannot stand, for they are
then strangers to the suit. As there was no decree in favour of
Vijay Kumar and as in fact the suit considered as brought by him
has been dismissed by the courts below and there is no appeal
by him, the appeal was allowed. Hon'ble Mr Justice Bachwat, in a
separate but concurring judgment, observed in paragraph 15
that admittedly the name of the original plaintiff was not a misdescription
of the names of Tarabai's daughters. It was also not a
case where a wrong defendant was sued as representing the
estate of a deceased person and subsequently the real
representative is added as a defendant. In paragraph 20 it was
observed that as regards Mahabalkumari, Rajkumari and
Premkumari the suit must be regarded as instituted on
4.11.1958. As far as they are concerned, the suit was barred by
limitation and no decree can be passed in their favour. The
decree passed by the High Court in their favour was not
sustained and was set aside. It is in that context the Apex Court
allowed the appeal and the decree passed by the High Court in
favour of Mahabalkumari, Rajkumari and Premkumari was set
aside and the decree passed by the trial Court was restored.
19. As noted earlier, in the present case, there is no question of
either substitution of the defendant or addition of the defendant.
The only amendment is about description of the plaintiff and
incorporation of paragraph 1(a) which is clarificatory in nature.
In my opinion, this case does not advance the case of the
defendant.
20. In view of the above, the impugned order cannot be
sustained and the same is liable to be quashed and set aside.
Rule is made absolute in terms of prayer clause (A) with no order
as to costs.
21. The application for amendment at Exhibit 49 in Suit No.74
of 2004 is allowed. The plaintiff shall carry out amendment
within four weeks from today. The defendants are at liberty to file
addition Written Statement within two weeks from service of
copy of the amended Plaint. It is, however, clarified that issue of
limitation is kept open.
(R.G.KETKAR, J.)
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