1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1414 OF 2008 M/s.Volkart Fleming Shipping & Services Limited .. Petitioner Versus M/s.Harshadray Pvt.Ltd. .. Respondent Mr.V.A.Thorat, Senior Advocate with Mr.R.A.Thorat for petitioner CORAM : S.C.DHARMADHIKARI, J. DATE : 3rd March 2008 P.C. . This petition is directed against an interlocutory order. The order under challenge is passed on an application preferred by the 2 petitioners who are limited company. They are in appeal against the judgement and decree in R.A.E. & R. Suit No.618/2090 of 1984 instituted by the respondent - original plaintiff. 2. The suit is decreed and an appeal is preferred before the appellate bench of the Court of Small Causes, Mumbai being Appeal No.446 of 2000. During the pendency of this appeal, petitioners moved an application seeking permission of the lower appellate court to amend the written statement and memo of appeal which has been rejected. 3. Mr.Thorat, learned Senior Counsel appearing for petitioners contended before me that the written statement in the trial court which was filed on behalf of petitioners original defendants very clearly stated that for some period the licence to store goods was not granted. However, the application in that behalf 3 made on 15th July 1983 was granted on 17th July 1984 and the licence was issued which is restrospective in effect. Hence, for a brief period, the licence being unavailable or that the same was not applied for, is not enough to conclude that the case of original plaintiff is proved. That apart, the licence for storing materials in the suit premises being not granted, the storage without licence resulted in the Appropriate Authority filing a case being Case no.4503 of 1983 in the Metropolitan Magistrate’s court Dadar and there is conviction on 9th January 1984. The lower appellate court has observed that no documents such as copies of complaint or final judgement were annexed to the plaint. Mr.Thorat’s grievance is that relying upon the averments in the written statement and without appreciating as to who was the accused before Metropolitan Magistrate, application for amendment is rejected. The explanatory amendment ought to have been granted. 4 4. In my view, the application was filed for amendment of W.S. Application was also for amendment to the memo of appeal. Such an application being rejected does not mean that petitioner is precluded from raising appropriate pleas, while impugning the judgement of the trial court. While, it may be true that the facts on record disclose some case being filed so also it resulting in a conviction, merely because the amendment application is rejected does not mean that the petitioner is precluded from raising a plea that such a complaint and conviction therein, by no means can be construed as an offence being committed by petitioner appellant. They can very well place before the Court all such documents including certified true copies of the complaint and the order of the Metropolitan Magistrate so also point out that complaint was against one Rajkumar and Suvarna. They were purportedly proceeded against as representatives 5 of petitioner but conviction was only against Rajkumar and though the petitioner and the said Suvarna were named, they have been acquitted. I do not see any impediment for all such pleas being raised and merely because the amendment application has been rejected by the impugned order does not mean that lower appellate court will prevent the petitioner from raising them or if raised the same would not be considered. That apart, the lower appellate court is also obliged to consider the pleas of the petitioners to the effect that the licence was issued and would, therefore, relate back to the date on which the application was made. The interregnum therefore, does not mean that the storage is without any authority, permit or licence. Needless to state that the legal effect of the conviction so also whether the issuance of licence relates back to the date of application or not are matters which can also be raised during the course of arguments. The lower appellate court must go 6 into all such pleas and I have no doubt in my mind that the same would be gone into uninfluenced by the order made on the amendment application. That must be read as being confined to the request for amendment to the written statement and the memo of appeal. Beyond that the same does not prejudice petitioners - appellants in any manner. 5. With this clarification being issued, there is no reason to interfere with the order impugned which is purely interlocutory. Petition dismissed. (S.C.Dharmadhikari, J)