SCA/11544/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11544 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= SALES MEDIA - A DISSOLVED PARTNERSHIP FIRM & 4 - Petitioner(s) Versus RAJKOT NAGRIK SAHAKARI BANK LTD & 1 - Respondent(s) ========================================= Appearance : MR PREMAL S RACHH for Petitioner(s) : 1 - 5. NOTICE NOT RECD BACK for Respondent(s) : 1, MR JR SHAH for Respondent(s) : 1, MR RAVINDRA SHAH for Respondent(s) : 2, MRS KANAN R SHAH for Respondent(s) : 2, ========================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 27/11/2008 ORAL JUDGMENT SCA/11544/2008 2/6 JUDGMENT 1. Rule. Mr. Viral K. Shah with Mr. J.R.Shah, learned counsel for the respondent No.1 waives service of notice of Rule for the respondent No.1 and Mr. Ravindra Shah waives service of notice of Rule for the respondent No.2. 2. With the consent of learned counsels appearing for both the sides, the matter is taken up for final hearing today. 3. The petitioner, by this petition, has challenged the order passed by the learned Board of Nominee below Ex.139 in Lavad Suit No.783 of 2000 and its confirmation by the learned Tribunal vide order dated 01.09.2008 in Revision Application No.516/2006 whereby the amendment of written statement is not granted. 4. Heard Mr. Rachh, learned counsel for the petitioners, Mr. Viral K.Shah with Mr. J.R.Shah, learned counsel for the respondent No.1 bank and Mr. Ravindra Shah, learned counsel for the respondent No.2. 5. Upon hearing the learned counsel appearing for both the sides, it appears that at the stage when the argument of the petitioners, who are defendants in the suit was to be heard, the amendment application being Ex.139 was preferred by the petitioners before the learned Board of Nominee to amend the written statement. The learned Nominee as well as the Tribunal SCA/11544/2008 3/6 JUDGMENT found that such amendment application is preferred with a view to delay the proceedings of the suit, and consequently, the final order which may be passed in the suit; and it is also observed by the Courts below that if the amendment is granted, it may result in to granting an opportunity of leading the fresh evidence and would further delay the proceedings and may also prejudice the rights of the bank on the aspect of the witnesses already examined. Therefore, the amendment application is rejected and the same is confirmed by the Tribunal. 6. Mr.Rachh, learned counsel appearing for the petitioners, with a view to allay the apprehension on the part of the respondent bank that the proceedings of the suit may be delayed or that the petitioners may move the application for recalling of the witnesses or further cross-examination of the witnesses, if the amendment is granted, declared that if the amendment is granted, no further evidence shall be led by the petitioners before the learned Nominee as the evidence is already there on the record. Therefore it is submitted that if the amendment is granted such clarification, the petitioners have no objection. Whereas, on behalf of respondent No.1 bank, it is submitted that even if this Court is inclined to grant amendment with the said clarification, as the matter is sufficiently delayed, this Court may direct for disposal of the suit within some reasonable time and also the cost. 7. I would have recorded the reasons for interfering with SCA/11544/2008 4/6 JUDGMENT the order passed by the Nominee and as that of the Tribunal, however, the learned counsels appearing for both the sides have not invited the reasons, and therefore, I find it proper not to record the reasons. Suffice it to say that lenient view is required to be taken in the matter of granting of the amendment unless it is with malafide purpose by the party praying for amendment. The learned Nominee as well as the Tribunal proceeded on the basis that the malafide purpose is to reopen the evidence already closed and also to delay the proceedings of the suit, which in any case would not survive in view of the declaration made on behalf of the petitioners. Further, the petitioners have already shown willingness to complete the arguments and have no objection if the direction is given to the learned Nominee to dispose of the suit within some reasonable time. 8. Under these circumstances, I find that if the orders of the learned Nominee and its confirmation by the Tribunal deserve to be interfered with and if the amendment is granted, no prejudice will be caused to the respondents. Even as per the settled legal position, it was required for the learned Nominee as well as for the Tribunal to consider the matter for grant of amendment on payment of appropriate cost. Considering the facts and circumstances, I find that it would be just and proper to award the cost of Rs.2,500/- (Rupees Two Thousand Five Hundred only) to the respondent No.1 bank. So far as the other parties of the proceedings are concerned, SCA/11544/2008 5/6 JUDGMENT they are not in any case prejudiced. Therefore, cost is not required to be awarded to the other parties to the proceedings. 9. In view of the above, the following order: Impugned orders of the learned Nominee below Ex.139 and its confirmation thereof by the Tribunal in revisional proceedings are quashed and set aside with the further observations and directions that the application of the petitioners for amendment of the written statement shall stand allowed on conditions that (1) The petitioners shall pay the cost of Rs.2,500/- (Rupees Two Thousand Five Hundred only) to the respondent No.1 bank within one week from today, or in any case, prior to carrying out the amendment. (2) the petitioners-original defendants No. 1 to 5 shall not be entitled to lead any fresh evidence or recasting of the issues on account of the amendment granted (3) the petitioners shall amend the written statement by carrying out amendment within one week and (4) the petitioners shall complete the arguments within three weeks after the amendment is carried out. It is also observed that after the arguments are completed, the learned Nominee shall conclude the suit by appropriate order preferably within the period of two months from the conclusion of the arguments. The petition is allowed to the aforesaid extent. SCA/11544/2008 6/6 JUDGMENT Rule is made absolute. [JAYANT PATEL, J.] jani