1 wp5257-11.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5257 OF 2011 Dr.Rajesh Dwarkadasji Kabara .. Petitioner Versus Dilip Suganchand Surana and others .. Respondents Mr. M. M. Shathaye for the Petitioner CORAM: R. M. BORDE, J. DATED : 22nd August, 2011 P. C. 1. This petition presented by the petitioner-original defendant no.26 raising exception to the order passed by the Second Joint Civil Judge on 9th March, 2011 below Exh.63 in Special Civil Suit no. 178 of 2005. 2. The trial Court permitted the plaintiff to amend the plaint in view of the impugned order passed on 19th April, 2011. The plaintiff, in his application, proposed to amendment Para 4(a) and seeks to introduce the details in respect of the transactions effected by the parties during the continuance of 2 wp5257-11.sxw the suit. It is not disputed that the suit is presented by the plaintiff in the year 2004, whereas, the plaintiffs seeks amendment and wants to incorporate the details in respect of the transactions effected in the year 2006-08. Obviously, the plaintiff had no occasion to including the details in respects of the transactions which occurred at later point of time. Considering this aspect of the matter, has permitted the plaintiff to amend the pleadings. 3. It is contended by the counsel appearing for the petitioner that the plaintiff has not exhibited that he has exercised due diligence and as such, in view of the proviso to Rule 17 Order 6 of the Code of Civil Procedure, the trial Court ought not have permitted the plaintiff to amend the pleadings. 4. I have perused the application as well as the impugned order passed by the trial Court. I am convinced that the trial Court is within its bound in exercising the jurisdiction in favour of the plaintiff. Reference is necessarily be made to a reported Judgment of the Apex Court in the matter of Revajeetu Builders &Developers Vs. Narayanswamy & 3 wp5257-11.sxw Sons, reported in 2009 (60 ALL MR 986, the Apex Court observed on para 61, 62 and 67 of the judgment thus: "61. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment. 62. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. 67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment con- stitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. 4 wp5257-11.sxw 5. For the reasons set out above, I am convinced that the trial court has exercised the jurisdiction properly and in exercise of the power conferred under article 227 of the Constitution of India and in view of the mandate of the Apex Court in the matter of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil, reported in (2010) 8 Supreme Court Cases 329, no interference is called for in the petition. 6. The petition is devoid of substance and hence stands dismissed. 7. Parties are at liberty to raise all contentions including the point of limitation before the trial Court. ( R. M. BORDE, J.)