Moez Mohemadally v. Paresh Tulsidas Vora And ORS

Dusane

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION BHALCHANDRA GOPAL DUSANE BHALCHANDRA GOPAL DUSANE Date: 2023.03.18 16:44:31 +0530 WRIT PETITION NO.3338 OF 2023 Moez Mohemadally

...Petitioner

sole Proprietor Mofems Trading & Co.

V/s.

Paresh Tulsidas Vora & Ors.

...Respondents

AND Ashok Tulsidas Vora & Ors.

Mr. Ranjit A. Thorat, Senior Advocate i/by Malholi Shahnaz Baig for Petitioner.

Dr. Abhinav Chandrachud a/w Ms. Vibhuti Keny a/w Ms. Sakshi Kapadia i/by Converse Law & Lalit Jain for Respondents.

CORAM:

MADHAV J. JAMDAR, J.

DATE:

17th MARCH 2023 P.C.:

1.

Heard Mr. Thorat, learned Senior Counsel appearing for the Petitioners and Dr. Chandrachud, learned Counsel appearing for the Respondents.

2.

By the present petition, the Petitioner is challenging legality and validity of the order dated 30th January 2023 passed

by the learned Judge, Small Causes Court, Mumbai below Exhibit 72 in R.A.E. Suit No.679/1107 of 2011 as well as order dated 23rd February 2023 passed by the Revisional Court of Small Causes, Mumbai in Revision Application No. 76 of 2023. 3.

The said application bearing Exhibit 72 was filed seeking amendment in the written statement. The amendment is to the effect that the Plaintiffs are not the owners and landlords of the suit property.

4.

It is admitted position that both the parties have led the evidence and the suit is being argued before the Small Causes Court and at that stage, the present application has been filed. 5.

Both the Courts have concurrently held that the Plaintiffs have failed to prove the due diligence as contemplated under proviso of Order VI, Rule 17 of Code of Civil Procedure, 1908. 6.

The Supreme Court in the case of Vidyabai and Others Vs. Padmalatha and Another, reported in (2009) 2 Supreme Court Cases 409 has held that the Court will have no jurisdiction to allow amendment application unless the conditions precedent thereof are satisfied viz. it must come to a conclusion that inspite of due diligence the parties could not have raised the matter before the commencement of trial. Both the Courts have held that due diligence is not proved. Therefore both the Courts are justified in rejecting the amendment

application. Mr. Thorat, learned Senior Counsel failed to point out any lacuna in the said conclusion.

7.

Apart from the above aspect, amendment is in the nature of withdrawal of admission as in the written statement, the Defendants have admitted that the Plaintiffs are the landlords. Such withdrawal of admission is not permissible. 8.

Therefore, there is no substance in the Writ Petition and the same is dismissed, however, with no order as to costs. (MADHAV J. JAMDAR, J.)