Supreme Court - Daily Orders
Pandit Malhari Mahale vs Monika Pandit Mahale on 10 January, 2020
Bench: Ashok Bhushan, M.R. Shah
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 189 of 2020
[@ Special Leave to Appeal (C) No(s). 5888/2019]
PANDIT MALHARI MAHALE Appellant(s)
VERSUS
MONIKA PANDIT MAHALE & ORS. Respondent(s)
O R D E R
Leave granted.
We have heard learned counsel for the appellant. Despite service, no one is present on behalf of the respondents.
This appeal has been filed against the judgment and order dated 14.08.2018 passed by the High Court in W.P. (C) No. 11263/2016, by which the High Court dismissed the writ petition.
A suit for partition was filed by the respondents i.e. wife and children of the appellant. In the suit, evidence started and thereafter an application for amendment of plaint was filed by plaintiff No.3. The amendment was objected by the defendant (appellant herein). However, the learned Civil Judge by order dated 09.03.2016 allowed the application against which the writ petition was filed which was dismissed.
Learned counsel for the appellant submits that evidence Signature Not Verified had already begun and in view of Order VI Rule 16 of the Code Digitally signed by MEENAKSHI KOHLI Date: 2020.01.13 17:11:42 IST Reason: of Civil Procedure, 1908 the amendment could not have been 1 considered unless the Court return a finding that in spite of due diligence, the party could not have raised the matter before the commencement of the trial.
We have considered the submissions of learned counsel for the appellant and perused the record.
From the evidence on record, it does appear that evidence had begun and thereafter amendment application was filed. Without their being any finding by the Court as contemplated by Order VI Rule 16 proviso, the Court ought not to have allowed the amendment.
In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In Vidyabai & Ors. v. Padmalatha & Anr. [(2009) 2 SCC 409 ], this Court observed in para 19 as under:
“19. It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court’s jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.” There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order 2 of the Trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view of aforesaid, we allow the appeal and set aside the order of the High Court as well as of the Civil Judge, the amendment application stands dismissed.
…....................J. [ASHOK BHUSHAN] …....................J. [M.R. SHAH] NEW DELHI;
January 10, 2020.
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ITEM NO.34 COURT NO.9 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 5888/2019
(Arising out of impugned final judgment and order dated 14-08-2018 in WPC No. 11263/2016 passed by the High Court Of Judicature At Bombay) PANDIT MALHARI MAHALE Petitioner(s) VERSUS MONIKA PANDIT MAHALE & ORS. Respondent(s) Date : 10-01-2020 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE ASHOK BHUSHAN
HON'BLE MR. JUSTICE M.R. SHAH
For Petitioner(s) Mr. Pranesh, AOR
For Respondent(s)
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is allowed in terms of the signed order. Pending application, if any, stands disposed of.
(MEENAKSHI KOHLI) (RENU KAPOOR)
COURT MASTER COURT MASTER
[Signed order is placed on the file]
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