Mahesh S. Jadhav And ANR v. Sunanda R. Katkar

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 875 OF 2022 Mahesh S. Jadhav and anr.

.. Petitioners V/s.

Sunanda R. Katkar .. Respondent ...

Mr. Suryajeet P. Chavan i/by. One Legal Bay LLP, Advocate for the Petitioners.

Mr. Kishor G. Pashte, Advocate for the Respondent. ...

CORAM : SANDEEP V. MARNE, J.

DATED : JULY 28, 2023.

P.C. :

1.

By this petition, Petitioners/Defendants challenge order dated November 19, 2021 passed by the Civil Judge, Senior Division, Vita thereby allowing Plaintiff's application for amendment in the plaint.

2.

The Respondent/Plaintiff has instituted Regular Civil Suit No. 331/2020 seeking declaration of termination of partnership deed allegedly executed between the Plaintiff and Defendant. It is Plaintiff's case in the plaint that the partnership commenced on October 23, 2006 and in pursuance of 1/5

2/5 commencement of such partnership, a partnership deed was executed on November 6, 2006. In paras-1 and 7 of the plaint, the Plaintiffs made specific averments to the effect that the partnership deed was executed on November 6, 2006. However, it appears that at two places in the plaint, viz paras-6 and prayer clause (b), the date of the partnership deed was stated as 'November 6, 2011' instead of 'November 6, 2006'. The limited amendment that the Petitioners-Plaintiffs sought in the plaint was to correct the error in describing the date of partnership deed in para-6 and prayer clause (b) of the plaint.

3.

The learned Counsel for the Petitioners would submit that the amendment application was moved after arguments in the suit had commenced. He would take me through the rojnama of the suit which shows that the suit was closed for arguments on August 3, 2019. Thereafter, the Defendant completed arguments on December 12, 2019. The Plaintiffs commenced their arguments on December 18, 2019. It appears that the suit was adjourned from time to time for filing of written arguments. At such a belated stage, application for amendment was filed on March 30, 2021. The Learned Counsel for the Petitioners would submit that since application for amendment was filed not only after the trial had commenced but at a stage where the arguments in the suit were virtually completed, the Trial Court ought to have rejected the amendment application. His next submission is that the amendment was not of formal nature as held by the Trial 2/5

3/5 Court. He would submit that the Defendant has disputed any partnership between the parties. That the Written Statement is filed by the Defendant by taking the date of partnership as 'November 6, 2011' and now the Plaintiff cannot be permitted to change the date of partnership deed at a stage where the suit was to be disposed of by considering the arguments advanced by both the sides.

4.

Per-contra, the learned Counsel for the Respondent would submit that the amendment is of a formal nature as the Plaintiff had correctly described the date of partnership deed as 'November 6, 2006' at two places in the plaint. 5.

I have considered the submissions canvassed by the learned Counsel for the parties. The amendment application filed by the Plaintiff was only for the purpose of correction of the date of partnership deed from 'November 6, 2011' to 'November 6, 2006' as mentioned in para-6 and prayer clause (b) of the plaint. As observed above, the Plaintiff had correctly stated the date of partnership deed as 'November 6, 2006' in paras-1 and 7 of the plaint. For convenience, the pleadings in paras-1 and 7 of the plaint, are reproduced below.

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6.

Thus, the contention of the learned Counsel for the Petitioners that the Defendants filed their Written Statement by presuming the date of partnership deed as 'November 6, 2011' does not appear to be correct. On the contrary, the Plaintiff has specifically described the date of execution of partnership deed as 'November 6, 2006' at two places in the plaint. The partnership deed appears to have been filed alongwith the suit and is marked as Exhibit-39. The learned Counsel for the Respondent-Plaintiff has produced copy of the partnership deed for my perusal. It 4/5

5/5 bears the date of 'November 6, 2006'. Therefore, there is no iota of doubt that there has been error in para-6 and prayer clause (b) in describing the date of partnership deed as 'November 6, 2011'. The amendment sought to be carried out was undoubtedly formal in nature.

7.

What remains now is, the stage at which the amendment was sought. No doubt, the Plaintiff is late in filing the application for amendment. By the time the application for amendment was filed on March 30, 2021, the arguments in the suit were being heard. The Trial Court has imposed costs of Rs.300/- for permitting the Plaintiff to a mend the application. Accordingly, the order passed by the Trial Court on November 19, 2021 allowing the application for amendment is upheld. The Writ Petition, being devoid of merits is dismissed with no orders as to costs.

NEETA SHAILESH SAWANT (SANDEEP V. MARNE, J.) NEETA SHAILESH SAWANT Date: 2023.07.31 17:23:23 +0530 5/5