Case Note & Summary
The petitioner, Ram Richpal Jain, challenged an order dated 24.2.2010 passed by the learned Civil Judge, Junior Division, Nashik Road, allowing an application for amendment (Ex.17) in MCA No.16/2008. The background is that one Dara Khurshedji Amrolia had filed Regular Civil Suit No.370/69, which was later transferred to Nashik Road and renumbered as RCS No.12/1995. The suit was dismissed ex-parte. The daughter of the deceased plaintiff, Firoza Bomi Anklesaria, filed MCA No.16/2008 for restoration of the suit along with an application for condonation of delay. In that application, an amendment application (Ex.17) was filed to add facts justifying the delay of 11 years, 7 months and 6 days. The trial court allowed the amendment. The petitioner argued that the amendment was impermissible in an application for condonation of delay and that the proposed amendment was longer than the original application. The respondent contended that the order was discretionary and warranted no interference. The High Court held that the impugned order was purely interlocutory and that the amendment introduced facts supporting the applicant's case to justify the delay. The Court noted that under Article 227 of the Constitution of India, interference is warranted only if the discretion is exercised perversely, and no perversity was found. The Court distinguished the judgment in Gurdial Singh & Ors. v. Raj Kumar Aneja & Ors. (2002 AIR SCW 718) as dealing with mode of amendment to pleadings, not applicable here. The petition was dismissed and rule discharged.
Headnote
A) Civil Procedure - Amendment of Pleadings - Application for Condonation of Delay - Amendment to application for condonation of delay is permissible if it introduces facts supporting the case of the applicant to justify the delay - The trial court allowed amendment to add facts to explain delay of 11 years, 7 months and 6 days in filing restoration application - Held that such amendment is permissible and no perversity in exercise of discretion (Paras 6-7).
B) Constitutional Law - Supervisory Jurisdiction - Article 227 of the Constitution of India - Interference with discretionary order - High Court will interfere only if discretion exercised perversely - No perversity found in trial court allowing amendment - Petition dismissed (Paras 7-8).
Issue of Consideration
Whether an application for amendment to an application for condonation of delay is permissible and whether the trial court's order allowing such amendment warrants interference under Article 227 of the Constitution of India.
Final Decision
The petition is dismissed. Rule is discharged.
Law Points
- Amendment in application for condonation of delay is permissible if it supports the case of the applicant to justify delay
- Interference under Article 227 only if discretion exercised perversely
Case Details
2011 LawText (BOM) (06) 13
Writ Petition No. 3150 of 2010
Mr. V.Z. Kankari for petitioner, Mr. S.M. Gorwadkar for respondent No.1
Dara Khurshadji Amrolia & Ors.
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Nature of Litigation
Writ petition under Article 227 challenging an interlocutory order allowing amendment to an application for condonation of delay in filing restoration application.
Remedy Sought
Petitioner sought to quash the order dated 24.2.2010 allowing amendment application Ex.17 in MCA No.16/2008.
Filing Reason
The petitioner contended that the amendment to the application for condonation of delay was impermissible and that the trial court erred in allowing it.
Previous Decisions
The trial court (Civil Judge, Junior Division, Nashik Road) allowed the amendment application Ex.17 on 24.2.2010.
Issues
Whether an application for amendment to an application for condonation of delay is permissible?
Whether the trial court's order allowing such amendment warrants interference under Article 227 of the Constitution of India?
Submissions/Arguments
Petitioner's counsel argued that the amendment is not permissible in an application for condonation of delay, and the proposed amendment is longer than the original application. Relied on Gurdial Singh v. Raj Kumar Aneja.
Respondent's counsel submitted that the trial court passed the order in its discretionary jurisdiction and no interference is warranted.
Ratio Decidendi
An amendment to an application for condonation of delay is permissible if it introduces facts supporting the applicant's case to justify the delay. The High Court under Article 227 will interfere with a discretionary order only if the discretion is exercised perversely. No perversity was found in the trial court's order allowing the amendment.
Judgment Excerpts
Perusal of the impugned order would reveal that by way of amendment certain facts which supported the case of the applicant to justify the delay caused in filing the application for restoration was necessary in order to do justice to the applicant.
This Court in its jurisdiction under Article 227 of the Constitution of India would interfere with the discretion exercised by the learned trial Court, if only if it is found that the said discretion has been exercised in perverse manner. No perversity is noticed in the jurisdiction exercised by the learned trial Court to warrant interference.
Procedural History
Regular Civil Suit No.370/69 was filed, later transferred and renumbered as RCS No.12/1995. The suit was dismissed ex-parte. The daughter of the deceased plaintiff filed MCA No.16/2008 for restoration along with an application for condonation of delay. An amendment application Ex.17 was filed in the condonation application, which was allowed on 24.2.2010. The petitioner challenged this order by filing Writ Petition No.3150 of 2010, which was dismissed on 6.6.2011.
Acts & Sections
- Constitution of India: Article 227
