wp4024-09.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4024 OF 2009 Mahyamvargiya Sarvodaya Sahakari Gruh Rachana Sanstha Mydt ..Petitioner versus Sunil Gajanan Kulkarni & Ors ..Respondents Mr.S.U.Kamdar, Sr.Adv with Mr.N.N.Bhadrashete, Mr.M.G.Patil and Mr.R.S.Kate for the petitioner. Mr.A.V.Anturkar with Mr.N.V.Gangal for respondent No.1. Mr.Ajit Savagave i/by Mr.S.S.Patwardhan for respondent Nos.2 and 3. CORAM : S.C.DHARMADHIKARI, J. 6th July 2011. P.C.: . Rule. Respondents waive service. By consent Rule made returnable forthwith. 2 By this writ petition under Article 227 of the wp4024-09.doc 2 Constitution of India, the order passed by the Maharashtra State Co-operative Appellate Court on 3rd April 2009 is challenged by the petitioner. 3 The petitioner is the original disputant in Dispute No. 79 of 1995. It made an application for amendment of the dispute by invoking Order VI, Rule 17 of the Code of Civil Procedure, 1908 and submitted that the dispute is filed for declaration and injunction, so also for prohibitory orders restraining certain persons from obstructing the office bearers who represent and pose themselves as officers. These persons were the original opponents. It was pointed out in the application that one Vinay Phadnis representing the petitioner has filed a dispute being Dispute No.102 of 1996 against the office bearers and agents of the petitioner and sought certain reliefs. That dispute is pending. It was pointed out that the petitioner had earlier filed another dispute bearing Dispute No. 47 of 2004 against the present opponents and one Shailesh Kulkarni. In that dispute, an application for temporary injunction wp4024-09.doc 3 was made, which came to be rejected. In that dispute, the petitioner preferred an Appeal bearing No.40 of 2006 and in the said appeal, third party application was filed by one Vinay Phadnis to implead him as a party respondent on the ground that he is elected Chairman of the petitioner. That application was rejected by the lower Appellate Court on 6th May 2006. However, the said Vinay Phadnis also filed an Appeal bearing No.73 of 2006 before the Divisional Joint Registrar, Co- operative Societies, Pune against an order of the Deputy Registrar, Co-operative Socities, Pune City, Pune, rejecting the proposal for amendment of by-laws. This proposal was submitted by said Vinay Phadnis by projecting himself as Chairman of the petitioner-Society. That appeal is also pending. The said Vinay Phadnis also filed criminal proceedings. Thus, this Vinay Phadnis is also a party in several Court proceedings and he is trying to project himself in some of them as Chairman of the petitioner-Society. He is also one of the obstructionists who are trying to obstruct the present office bearers and that is how the instant dispute requires to be wp4024-09.doc 4 amended by incorporating necessary pleading in relation to the said Vinay Phadnis and to implead him as a party opponent. 4 This amendment application was opposed by the original opponent No.1 Sunil Kulkarni. After the necessary affidavits were filed, this application for amendment being Misc.Application No.57 of 2009 was heard by the learned trial Judge and by an order dated 21st March 2009, the application was allowed and the amendment was permitted to be carried out. 5 Aggrieved by this order, the said original opponent No.1 Sunil Kulkarni, who is the 1st respondent to this petition, filed a revision application being Revision Application No.44 of 2009 which has been heard by the Maharashtra State Co- operative Appellate Court and by the impugned order, the same is allowed. That is how, the petitioner-original disputants in dispute No.79 of 1995 are before this Court. wp4024-09.doc 5 6 I have heard Mr.Kamdar, learned senior counsel appearing on behalf of the petitioner-disputants and Mr.Anturkar appearing on behalf of the 1st respondent. With their assistance, I have perused the orders under challenge. To my mind, the Revisional Court was in complete error in allowing this revision application. The Revisional Court was concerned with an order granting amendment to the dispute. The only ground on which the Revisional Court has interfered is that Order VI, Rule 17 of the Code of Civil Procedure, 1908 applies to the proceedings before the trial Court. Thus, even in a dispute under section 91 of the Maharashtra Co-operative Societies Act, 1960, an application for amendment can be made and it must be decided on the touchstone of Order VI, Rule 17 of the Code. That provision is amended with effect from 1st July 2002. In the light of the clear wording of the proviso thereto, an amendment application cannot be allowed if the trial has commenced and unless the Court is satisfied that the requirement stipulated in the said proviso is fulfilled. In other words, the ingredients of the proviso have to be wp4024-09.doc 6 completely satisfied. In the instant case, what has been held is that the trial has commenced and further the petitioners have filed their affidavit of evidence. The matter is now at the stage of cross-examination of the petitioner’s witness. Further, the learned Judge has interfered with the order on the ground that the factual position as narrated in the amendment application, was known to the petitioner. The proposed amendment is changing the entire nature of dispute and creating new cause of action which actually accrued in 2006 and not after commencement of trial. In such circumstances, essentially on the ground that the proviso to Order VI, Rule 17 of the said Code having not been satisfied, that the application was rejected. 7 To my mind, the approach of the Revisional Court is erroneous in law. Firstly, Order VI, Rule 17 of the said Code has been brought on the statue with effect from 1st July 2002. The same clearly stipulates that the application for amendment cannot be allowed after trial is commenced, unless the Court wp4024-09.doc 7 comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of trial. The learned Judge has failed to apply his mind as to whether the amended provision would apply to a dispute which was filed in the year 1995 and was pending on the date when the amended provision came into force. He has not considered as to whether amended provision would govern application filed in the instant case, or the same has to be decided on the basis of unamended provision. Further, he lost sight of the fact that Order VI, Rule 17 of the said Code as applicable in the State of Maharashtra with effect from 1st October 1983 enables the Court to grant amendment. The learned Judge has not considered as to whether this amendment made by Bombay High Court with effect from 1st October 1983 stands superseded in the light of the amendment to the Principal Act with effect from 1st July 2002. Be that as it may, a view has been now taken by this Court that this provision which has been brought into effect from 1st July 202 shall govern the proceedings instituted after that date. It would not apply to all wp4024-09.doc 8 proceedings instituted prior to 1st July 2002. In such circumstances, the amendment application could not have been rejected on this count. 8 Similarly, it could not have been rejected on the ground that there is any change of cause of action. The dispute is essentially on the pleadings that certain persons project themselves as office bearers and obstruct the present Committee from carrying on the affairs of the petitioner-Society. They are already opponents who are claimed to be obstructionists. One more person is added to that list on account of his acts which were brought to the notice of the petitioner after the institution of the dispute. The reasons therefor are already set out in the amendment application. It is not for the trial Court or the lower Appellate Court/Revisional Court and this Court to go into the merits of the amended pleas. Once the amendment application states that the acts were subsequent to the institution of the dispute and that there is one more person projecting himself as Chairman of the wp4024-09.doc 9 Society in the Court matters, I do no see how the impleadment of this party and incorporating certain pleas in relation to his acts changes the cause of action or alters the structure of the dispute. The proceedings, namely, the dispute projects the same grievance and this is only another facet, which will be introduced by placing on record role of one more person and seeking to implead him as a party opponent. To my mind, that does not change the cause of action and merely because the petitioner was party to the proceedings instituted by Vinay Phadnis, does not mean that the Court cannot add him as party. For all these reasons and finding that both grounds on which amendment application has been disallowed by the Appellate Court are untenable in law and the Revisional Court has far exceeded its jurisdiction in rejecting the application for amendment, that I proceed to allow this writ petition. The same is allowed. The order passed by the Revisional Court dated 3rd April 2009, is quashed and set aside and order of the trial Court dated 21st March 2009, is maintained. wp4024-09.doc 10 9 It is clarified that this order is without prejudice to the rights and contentions of all parties and needless to state that no opinion is expressed on the merits of the amendment so also on the point of maintainability and jurisdiction. All pleas in that behalf are kept open and subject thereto, the amendment is granted. Rule made absolute as above. No costs. (S.C.DHARMADHIKARI, J)