1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 6988 OF 2008 1 The New India Assurance Co. Ltd Having its registered office at New India Assurance Building 87, Mahatma Gandhi Road, Fort, Bombay 400 023. through its Divisional Manager Mr. Arvind s/o Dinkarrao Sirnaik. 2 M/s Lupin Laboratories Limited having its works unit at A-28/1, MIDC, Industrial Area, Chikalthana Aurangabad. .. PETITIONERS VERSUS M/s Padmavati Transport Co. 3, Laxman Chawadi, Mondha Road, Aurangabad 431 001. .. RESPONDENT Mr. Anand Bhandari, Advocate holding for Mr. S.V. Gangapurwala, Advocate for the petitioners. ===== CORAM : R. M. BORDE, J. DATE : 12 th November, 2009 ORAL JUDGMENT : 2 1 Heard. 2 After issuance of notice by this court, efforts to serve the respondent at least on four occasions turned to be futile. As such, ultimately, request was made by petitioners to cause service on respondent by alternate mode i.e. by newspaper publication and said request was allowed. By way of publication of notice in the newspaper, respondent is served. However, inspite of publication of notice in the newspaper, respondent has not caused his appearance. The matter was kept back on several occasions to facilitate the respondent to cause his appearance. On 4-11-2009, this court directed the petitioner to serve notice on the counsel representing the respondent / original defendant before the trial court informing him that the matter would be taken up by this court for consideration on 11-11-2009. However, inspite of issuance of notice to the counsel representing the defendant before the trial court, respondent has not caused his appearance. In these circumstances, petition is taken up for final disposal at admission stage. 3 Rule. Rule made returnable forthwith. With the consent of the parties, matter is taken up for final disposal at admission stage. 3 4 Petitioners / original plaintiffs tendered application exh. 29 requesting the court to permit him to amend the plaint and incorporate contents in respect of letter dt. 20-11-1997 issued by the plaintiffs to the defendant. Application tendered by the petitioners was opposed by the respondent / original defendant contending that the amendment shall not be permitted as the same has an effect of defeating the defence of limitation accrued to the defendant. Considering the rival contentions, trial court was pleased to reject the application in view of order dt. 5-9-2008. 5 I have perused the order passed by the trial court. On consideration of the application as well as impugned order, it is evident that the proposed amendment is not likely to change the nature of the suit. The proposed amendment is explanatory in character as the plaintiff wants to contend in respect of the letter issued by him on 20-11-2007 to the defendant asking him to pay the amount as requested in the said letter. So far as defence of limitation allegedly accrued to the defendant is concerned, the same can be a matter of issue at the trial of suit. However, on that ground alone, application is not required to be thrown out. Learned counsel for the petitioner places reliance on the judgment of the Apex court in the matter of Pankaja and another vs. Yellappa reported in (2004) 6 Supreme Court 4 Cases 415. The relevant observations made by the Apex court find place in paragraph nos. 14 and 19 of the judgment : 14 The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case. 19 We have already noted, hereinabove, that there is an arguable question whether the limitation applicable for seeking the relief of declaration on facts of this case falls under Entry 58 of the Limitation Act or under Entry 64 or Entry 65 of the Limitation Act which question has to be decided in the trial, therefore, in our view, following the judgment of this Court in the case of Ragu Thilak D. John we set aside the impugned orders of the courts below, allow the amendment prayed for, direct the trial court to frame necessary issue in this regard and decide the said issue in accordance with law bearing in mind the law laid down by this Court in the case of L.J. Leach and Co. Ltd. . Similar view is adopted by the Apex court in the matter of Raghu Thilak D. John vs. S. Rayappan and others reported in AIR 2001 Supreme 5 Court 699. Considering the law laid down by the Apex court, it would be appropriate to direct the trial court to incorporate the defence raised by the defendant in respect of bar of limitation in an appropriate issue and to deal with the same at the time of final disposal of the suit. However, only because of contention raised by the defendant that the proposed amendment is likely to defeat the defence of limitation in itself is not a ground for rejecting the application. Application tendered by the petitioner / original plaintiff seeking the court to permit him to lead secondary evidence in respect of placing on record xerox copy of acknowledgement in respect of issuance of letter dt.20-11-1997 came to be rejected by the trial court. Plaintiff has contended in the application in respect of loss of original and has also further stated that he could not find out the document inspite of his best efforts. In such circumstances, it would be appropriate to extend opportunity to the petitioner to lead evidence to prove the document. Order passed by the trial court below exh. 30 rejecting the request made by the plaintiff also needs to be quashed and set aside. For the reasons stated above, writ petition deserves to be allowed and the same is accordingly allowed. Orders passed below exh. 29 and 30 in Special Civil Suit no. 32/2002 by the learned Jt. Civil Judge, Sr.Dn., Aurangabad on 5-9-2008 are quashed and set aside. Application tendered by the petitioner shall be treated to 6 have been allowed. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.) dyb/office/wp6988.08.odt