SRJ 1 wp-8623-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8623 OF 2009 Smt.Moti Dinshaw Moriadbadi/Irani & Another .. Petitioners vs. Shree Dara K. Moriadbadi/Irani & Others .. Respondents. Mr.J.S.Kini i/b. Mr.Suresh Dubey, for Petitioners. Mr. R.M.Pethe, for Respondent Nos.1-B,2-A,2-B & 3. Mr.S.S.Patwardhan for Respondent Nos. 4,4A to 4E CORAM :A.S.OKA,J. DATE :1st APRIL,2010 P.C.:- 1] I have heard the submissions of the Learned Counsels appearing for the parties. The parties were put to the notice that the Petition will be taken up for the final disposal at the admission stage. 2] The Petitioners are the Plaintiffs and the Respondents are the Defendants. The controversy arises out of the three applications made by the Petitioners for amendment of the plaint. The said three applications are at Exhibits 179, 196 and 200 respectively. The said applications were allowed by the Trial Court by judgments and orders dated 4th February 2008. The Application at Ex.179 was allowed subject to payment of costs of a sum of Rs.1000/-. It appears that in terms of order passed on applications at Exhibits 196 and 200, the amendment was carried out on 11th February, 2008. On 9th June, 2009, Respondent No.4 made an application at exhibit 266. In the said SRJ 2 wp-8623-09.sxw application, it was pointed out that though the amendment ought to have been carried out on or before 5th February, 2008, without seeking extension of time, the amendment was carried out by the Petitioner as per the orders below applications at Exhibits 196 and 200 on 11th February, 2008. It was alleged in the application that while carrying out amendment in terms of the order below Exhibit 200, the Petitioners unauthorizedly inserted new matters by incorporating some survey numbers which were not the part of the text of the amendment. It was contended that though as per order passed below the application at Exhibit 179, addition of paragraph 26-B was permitted, the Petitioner added paragraph 26-C while carrying out amendment. It was submitted that the amount of costs payable as per order below Exhibit 179 was not deposited within the stipulated time. The said application was contested by the Petitioner. It was contended that though amendments as per orders below applications at Exhibits 196 and 200 were belatedly made, the same were endorsed by the Trial Court and the learned Judge has signed the amendment on 18th February, 2008. It was contended that as per order below the application at Ex.179, the Petitioners were in fact permitted to incorporate both the paragraphs 26-B and 26-C in the Plaint. 2] By the impugned order dated 15th June, 2009, application at Ex.266 was allowed by the Learned Trial Court. The learned Trial Judge held that amendments were carried out as per orders below applications at Exhibits 196 and 200 after the time stipulated by the Court had expired. Therefore, the Trial Court directed that the said amendments shall be struck out. The Trial Court also directed that the portion unauthorizedly added while carrying out amendment as per order SRJ 3 wp-8623-09.sxw below Exhibit 200 shall be also struck out. The Learned Judge observed that the operative part of the order passed below application at exhibit 179 was self contradictory and was not consistent with the reasons recorded in the body of the order. Therefore, the learned Judge directed that the Petitioner should move an application to carry out the corrections in the operative part of the order below application at Exhibit 179. However, Trial Court did not direct deletion of the amendment carried out as per order below application at exhibit 179. 3] The Learned Counsel appearing for the Petitioners submitted that that there was delay of only seven days in carrying out amendment in terms of orders below applications at exhibits 196 and 200. He submitted that the fact that the said amendment duly endorsed by the trial Court shows that the time has been extended and the lapse on the part of the Petitioners has been condoned. He invited my attention to the application at exhibit 179 and order passed thereon by the Trial Court by placing copies thereof on record of the writ petition. He pointed out that the operative part of the said order shows that the petitioners were permitted to amend the plaint by adding paragraph 26-C. He pointed out that in the last part of the operative order the learned it judge recorded that addition of paragraph no.26-B was permitted. He submitted that there was justification for adding paragraph 26-C and the Trial Court was not justified in directing the Petitioner to apply for clarification. The learned Counsel appearing of the Respondents submitted that the conduct of the Petitioners will have viewed seriously in as much as without obtaining order of the order for extension of time to carry out amendment, not only that the Petitioners carried out the amendment, but the SRJ 4 wp-8623-09.sxw petitioners added a portion which was not permitted under the order of the trial Court. Inviting my attention to the text of the amendment in the application at exhibit 179, it was submitted that what was allowed by the amendment was only addition of paragraphs 26-B and that the paragraph 26-C could not have been added. It was submitted that considering the facts and the conduct of the petitioners no interference was called for in writ jurisdiction. 4] I have given careful consideration to the submissions. There is no dispute that the applications at exhibits 196 and 200 were allowed by the trial Court and the amendment was to be carried out on or before 5th February, 2008. It is not in dispute that the Petitioners did not apply for for extension of time to carry out amendment and without there being any order of the court, they proceeded to carry out amendment on 11th February, 2008. The submission is that the amendment carried out on 11th February, 2008 was endorsed by the learned Judge under his signature and, therefore, the default of delay is deemed to have been condoned. Under orders of the Court, the Petitioners were under an obligation to carry out amendment on or before 4th February, 2008. However, the Petitioners could have always applied under section 148 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said code) for extension of time. However, that was not done. Only because the learned Judge has endorsed the amendment, one cannot jump to the conclusion that the Trial Court has exercised the power to grant extension of time. When the learned at trial Judge did the ministerial work of endorsing the amendment, he may not be made aware of the fact that the amendment was to be carried out on or before 5th August 2008. Therefore, the trial court was justified SRJ 5 wp-8623-09.sxw in directing that the amendment made by the petitioners as per order below applications at exhibits 196 and 200 should be struck out. However, the petitioners could have always applied before the trial court for extension of time to carry out amendment as per orders below applications at exhibits 196 and 200. Notwithstanding the impugned order, the Trial Court can always exercise discretion by granting extension of time by compensating the respondent by awarding suitable amount of costs. Therefore, this Court can always permit the petitioners to make an application before the trial Court for extension of time to carry out amendment. However by adopting this process, the hearing of the suit of the year 1995 may be delayed further thereby causing further prejudice to the respondent. Therefore, instead of driving the petitioners to file a fresh application before the trial Court for grant of extension of time, considering the fact that the delay was only of seven days, this Court can always grant extension of time to carry out amendment subject to petitioners paying adequate amount of costs to the respondent. Considering the conduct of the petitioner, the amount of costs deserves to be quantified at Rs 15,000/-. The amount of Rs 10,000/-will be payable to the 4th Respondent who has raised the objection and the balance amount of Rs.5,000/- will be payable to the other Respondents. 5] Now, turning to the application at Exhibit 179, the amendment sought appears to be to be in three parts. The first part is for incorporating paragraph 26-B. The said paragraph was sought to be added for disputing the Will allegedly executed by the deceased first defendant. It was sought to be contended that the deceased first defendant was not in a condition to execute a SRJ 6 wp-8623-09.sxw Will. The second part of the amendment is for impleading nine additional defendants to whom the first defendant had sold some of the suit properties during the pendency of the suit. The third part of the amendment is by which paragraph 26-C was sought to be added for making necessary averments against the added defendants and for raising the contention that the added defendants have not acquired any title under the sale deed executed by the first defendant. The perusal of the order passed below application at Exhibit 179 shows that the learned trial judge never intended to allow the second and third part of the amendment and in fact he intended to allow only the first part of the amendment by permitting addition of paragraph 26-B. Therefore, the learned judge observed that the decree passed in the suit will be binding on the transferees of the first defendant during the pendency of the suit. As regards the said paragraph 26-B, there is a clear finding recorded in paragraph 7 of the order that the addition of the same deserves to be allowed. 6] Perusal on the order dated 4th February, 2008 passed below the application at Exhibit 179 shows that the prayer for implementing the parties has been specifically rejected in paragraph 6 of the order for reasons recorded therein. Therefore, there is an observation made in paragraph 7 that there is no necessity of permitting addition of Paragraph 26-C which amendment was sought as a consequence of addition of parties. Thus it is crystal clear that under the said order only the addition of paragraph 26B was permitted. Obvious error has crept in the operative part of the order passed below application at Exhibit 179 which indicates that addition of both the paragraphs was permitted. Taking undue advantage of the said SRJ 7 wp-8623-09.sxw error in the operative part, even paragraph 26-C has been added by the petitioner by carrying out amendment. As the order passed below exhibits 179 is crystal clear, it is not necessary to direct the petitioner to apply for clarification of the said order. 7] Hence, I pass following order:- (i) The direction given Paragraph 4 of the impugned order dated 15th June, 2000 is hereby confirmed; (ii) The Direction contained in paragraph 3 of the impugned order to strike out amendment carried out to the plaint in terms of order passed below the applications at exhibits 196 and 200 is set aside subject to Petitioners paying costs of Rs.10,000/- to the 4th Respondents within a period of ten weeks from today and subject to the Petitioners paying the costs of Rs.5,000/- to the rest of the Respondents within a period of ten weeks from today. If compliance is made by the Petitioner by making payment of the costs, time to carry out amendment in terms of order below Ex.196 and 200 will be stand extended till 11th February, 2008. If compliance is not made within the stipulated period, the directions contended in paragraph 3 of the impugned order will stand; (iii)In view of discussions made above, there is no requirement of applying for clarification of order below SRJ 8 wp-8623-09.sxw application at exhibit 179 as order has already been clarified by this Court. It is made clear that as per the said order passed below application at Exhibit 179, the petitioner is entitled to carry out amendment only by adding paragraph 26-B and rest of the amendment stands rejected. The trial court will pass a consequential order on the basis of this order. (iv) Subject to aforesaid modification, the Petition is disposed of. Hearing of the suit is expedited and Trial Court is directed to dispose of the suit before the end of September, 2010. (A.S.OKA,J.)