Harish Alimchandani vs Brijlal Nenwani and Others

R.K. Deshpande, J.—This petition challenges the order passed below Exh.6A i.e. the application for amendment filed by the Plaintiff in Special Civil Suit No. 11 of 2010. The learned Civil Judge (Senior Division), Washim, has allowed the application for amendment.

The notice for final disposal of the matter was issued on 1.9.2010 and the proceedings of the Special Civil Suit No. 11 of 2010 were stayed.

Rule made returnable forthwith. Heard the matter by consent of the learned Counsels appearing for the parties.

Shri A.K. Chaube, the learned Counsel appearing for the Petitioner/Defendant No. 1 has urged that the Trial Court has allowed the application for amendment without even issuing notice. He has further urged that by way of amendment, the entire nature of the suit is changed. The suit was initially for partition and separate possession of the property, but by way of amendment, the relief of specific performance of agreement dated 25.3.2005 has also been added. Thus, there is change in the nature of suit and the reliefs claimed.

The question is whether the Court can allow the application for amendment even without issuing notices to the Defendants. The Special Civil Suit No. 11 of 2010 was filed on 17.2.2010. On 20.2.2010, the application for amendment was filed. It was allowed by an order dated 23.2.2010. Thereafter, the suit summons was issued and the amended copy of the plaint was served upon the Defendants. Rule 17 of Order VI of the Code of Civil Procedure, 1908, is relevant and the same is reproduced below--

Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Where, however, an application for amendment is made by the Plaintiff in a suit in which the Defendant has not appeared, though served with a summons, and where in the opinion of the Court the amendment applied for is material one, the Court shall give notice of the application to the Defendant before allowing the amendment; and where in the absence of the Defendant the Court grants any amendment in a form materially different from that of which notice has been given to the Defendant, a copy of the amended plaint shall be served on the Defendant.

From the aforesaid provisions it is apparent, that the Court has jurisdiction to grant the application for amendment in a form materially different from that of which the notice has been given to the Defendants. In that event, the copy of the amended plaint, is required to be served upon the Defendants. It is not in dispute that even before issuing the suit summons, the application for amendment was moved and that has been allowed by the Court and the amended copy of the plaint has been served upon the Defendants. Hence, no jurisdictional error can be found in the order passed by the Trial Court.

If the Defendants intent to raise an objection regarding limitation or misjoinder of parties, it is open for the Defendants to take such stand in the written statement and make appropriate application in the Trial Court. However, no fault can be found with the exercise carried out by the Trial Court.

In view of above, the writ petition is dismissed. No order as to costs.