Gujarat High Court
Ashapura Trade And Transport Pvt Ltd vs State Of Gujarat on 15 February, 2019
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.G.Uraizee
C/SCA/15038/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15038 of 2018
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ASHAPURA TRADE AND TRANSPORT PVT LTD
Versus
STATE OF GUJARAT
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Appearance:
MR GAURAV K MEHTA(5227) for the PETITIONER(s) No. 1
MR NIRAL R MEHTA(3001) for the RESPONDENT(s) No. 2
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 15/02/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. Heard learned counsel for the parties.
2. The learned counsel for the petitioner has placed on record the draft amendment along-with documents. The draft amendment has been strongly opposed/objected by the learned counsel for the respondent. The learned counsel for the respondent made following submissions for resisting the draft amendment, namely:-
(i) The Court may take into note that the learned counsel for the petitioner have in fact completed his submission in the matter and the respondents had started responding to the contentions and only on account of paucity of time the matter was adjourn and had there been sufficient time available perhaps the matter would have been over.Page 1 of 5 C/SCA/15038/2018 ORDER
(ii) The amendment, at this stage, along-with a prayer to join the Managing Director is not permissible as the petitioner has not made out any case on the basis of his inability to produce the documents and make the challenge which have been sought to be incorporated by way of amendment prior to the filing of this petition. Therefore, when the hearing was mid way, the amendment is an unfortunate attempt.
(iii) The learned counsel for the respondent invited Court's attention to the list of documents specially at page No. 8, 11, 15, 14, 17, 19, 20, 21, 23, 31 and 33 by reference to the dates of the documents to indicate that all these documents were well within the custody and purview of the petitioner who could have produced the same while filing of the petition.
The date of filing of the petition is 28.07.2018 and Court issued notice on 27.09.2018 and the respondent Corporation has filed reply on 28.11.2018 and when there was a sufficient plea taken up during the course of submission as well as in the reply that the second show cause notice dated 26.09.2018 has not been challenged and attempt is made whereby the amendment is to fill the gap or Page 2 of 5 C/SCA/15038/2018 ORDER lacuna which can be said to be not permissible in the present circumstances of the case.
(iv) The petitioner has not made out any case for warranting the amendment at this stage and hence Court may not grant the amendment.
3. The learned counsel appearing for the petitioner relying upon a decision of the Supreme Court in the case of Suraj Prakash Bhasin v. Smr. Raj Rani Bhasin and others reported in (1981) 3 SCC 652 contended that the matter is only at the admission stage and the hearing qua admission was going on. He submitted that the Supreme Court has culled out principles to be taken into consideration while allowing or rejecting the application for amendment. These principles are (i) whether the amendment sought is imperative for proper and effective adjudication of the case; (ii) whether the application for amendment is bona fide or mala fide; (iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (iv) refusing amendment would in fact lead to injustice or lead to multiple litigation; (v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (vi) as a general rule, the court should decline amendment if a fresh suit on the amended claims would be barred by limitation on the date of application. The fact that Page 3 of 5 C/SCA/15038/2018 ORDER the claim is bared by the law of limitation is but one of the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice. The amendment and the contentions in the amendment do not in any manner change the subject matter of the petition nor does it attempt to rope in any respondent who otherwise could not have been joined on account of any handicap or any mandatory restrictions in any of the petitioner nor the subject matter is hit by limitation, and therefore, in view of the principle enunciated in the case of Revajeetu Builders & Developers v. Narayanaswamy & Sons reported in (2009) 10 SCC 84, the amendment may be granted.
4. We are of the view that the learned counsel for the respondent is not incorrect in submitting that the arguments even if qua admission so far petitioner is concerned were over and learned counsel for the respondent was actually on his legs, and therefore, on account of paucity of time, matter was required to be adjourned when the Court is of the view that the amendment is not having the impact of changing the subject matter of the dispute nor the subject matter is hit on account of any limitation, and when the amendment, even if, at the costs of some time being taken in completing the formality of filing the Page 4 of 5 C/SCA/15038/2018 ORDER reply to the amendment having been in furtherance of cause of the same need not be denied. The Court is also of the view that granting of amendment is not in any manner prejudicial to the respondent as the amendment and its contentions will be answered by filing further affidavit. Only prejudice which could be pleaded is the time to be consumed in answering the additional contentions in the affidavit of amendment and the same prejudice may not outweigh the requirement of justice, in case. Therefore, this Court is of the view that the amendment is required to be granted and the same shall be carried out forthwith. The learned counsel for the respondent seeks time to file appropriate reply to this amendment.
5. At the request of learned counsel for the respondent, put up this matter on 27th February, 2019.
(S.R.BRAHMBHATT, J) (A.G.URAIZEE, J) Manoj Page 5 of 5