Case Note & Summary
The petitioners, Smt. Savita Morajkar, Smt. Sarita Morajkar, and Shri Raghunath Shashikant Morajkar, through their Power of Attorney Shri Shashikant Raghunath Morajkar, filed a writ petition in the Bombay High Court at Goa challenging an order dated 8/12/2009 passed by the Civil Judge, Senior Division, Quepem in Special Civil Suit No.3/2005/A. The impugned order allowed an application for amendment filed by the respondent, Shri Ganba Fati Fal Dessai. The respondent raised a preliminary objection that the writ petition was not maintainable in view of the Supreme Court judgment in Prem Bakshi v. Dharam Dev (2002) 2 SCC 2, which dealt with the revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908. The petitioners' counsel argued that the said judgment was not attracted as the petition was under Article 226/227 of the Constitution. The court held that the ratio in Prem Bakshi was not applicable. On merits, the court found that the trial court had allowed the amendment application without giving any reasons whatsoever. The court observed that the trial court was bound to give reasons while disposing of the application. Consequently, the impugned order was quashed and set aside, and the matter was remanded to the trial court to decide the application afresh in accordance with law after hearing the parties. All rival contentions were kept open. Rule was made absolute with no order as to costs.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Requirement of Reasoned Order - Trial court allowed amendment application without assigning any reasons - Held that the order is liable to be set aside as the court was bound to give reasons while disposing of the application (Paras 4-5).
B) Writ Jurisdiction - Maintainability - Article 226/227 of Constitution of India - Challenge to Interlocutory Order - The objection based on Prem Bakshi v. Dharam Dev (2002) 2 SCC 2 was rejected as that case pertained to Section 115 CPC, not writ jurisdiction - Held that the writ petition challenging an order without reasons is maintainable (Paras 2-3).
Issue of Consideration
Whether the impugned order allowing amendment application is sustainable when no reasons are given by the trial court
Final Decision
The impugned order dated 8/12/2009 is quashed and set aside. The matter is remanded to the trial court to decide the amendment application afresh in accordance with law after hearing the parties. All rival contentions are kept open. Rule made absolute with no order as to costs.
Law Points
- Amendment application must be decided by a reasoned order
- Writ petition maintainable despite Section 115 CPC bar when order is without reasons
Case Details
2010 LawText (BOM) (09) 106
Writ Petition No.103 of 2010
Mr. Sudesh Usgaonkar for Petitioners, Mr. Vivek Rodrigues for Respondent
Smt. Savita Morajkar, Smt. Sarita Morajkar, Shri Raghunath Shashikant Morajkar
Shri Ganba Fati Fal Dessai
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Nature of Litigation
Civil writ petition challenging an interlocutory order allowing amendment of pleadings in a special civil suit.
Remedy Sought
Petitioners sought quashing of the trial court's order dated 8/12/2009 allowing the amendment application filed by the respondent.
Filing Reason
The trial court allowed the amendment application without assigning any reasons.
Previous Decisions
The trial court passed the impugned order on 8/12/2009 in Special Civil Suit No.3/2005/A allowing the amendment application.
Issues
Whether the writ petition is maintainable in view of the judgment in Prem Bakshi v. Dharam Dev?
Whether the impugned order allowing amendment is sustainable when no reasons are given?
Submissions/Arguments
Respondent argued that the writ petition is not maintainable in view of Prem Bakshi v. Dharam Dev (2002) 2 SCC 2.
Petitioners argued that Prem Bakshi relates to Section 115 CPC and is not attracted to writ petitions under Article 226/227.
Ratio Decidendi
A trial court is bound to give reasons while disposing of an application for amendment of pleadings. An order allowing amendment without any reasons is liable to be set aside. The writ petition under Article 226/227 is maintainable despite the bar under Section 115 CPC when the order suffers from a patent error like lack of reasons.
Judgment Excerpts
I am of the considered opinion that the ratio laid down in the case of Prem Bakshi is not attracted in the present case since the petitioner has filed writ petition challenging order dated 8/12/2009 passed by the trial court allowing the amendment application.
I deem it not necessary to go into the merits of the case since I am of the considered opinion that the impugned order dated 8/12/2009 passed by the trial court allowing the amendment application is liable to be set aside on the sole ground that absolutely no reasons are given by the trial court while allowing the amendment application.
The trial court was bound to give reasons while disposing of the application for amendment filed by the plaintiff.
Procedural History
The petitioners filed a writ petition in the High Court of Bombay at Goa challenging an order dated 8/12/2009 passed by the Civil Judge, Senior Division, Quepem in Special Civil Suit No.3/2005/A, which allowed the respondent's application for amendment. The High Court heard the parties on maintainability and merits, and by judgment dated 29/09/2010, quashed the impugned order and remanded the matter for fresh consideration.
Acts & Sections
- Code of Civil Procedure, 1908: Section 115, Order VI Rule 17
- Constitution of India: Article 226, Article 227
