R INDIA PVT. LTD THROUGH AUTHORISED SIGNATORYVERSUSABHAY GANPATRAO KULKARNIMr. S v. Dankh a

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1719 OF 2023FRANKE FABER INDIA PVT. LTD THROUGH AUTHORISED SIGNATORYVERSUSABHAY GANPATRAO KULKARNIMr. S. V. Dankh a/w Ms. Shrutika Deshpande, Advocate for the petitioner Mr. Abhay Ganpatrao Kulkarni, Respondent-in-personCORAM: R. M. JOSHI, J.DATE: 14th JUNE, 2024PER COURT :-1.By consent of both sides, heard finally at the stage ofadmission.2.This petition takes exception to the impugned order dated23rd December, 2022 passed below Exhibit 92 filed by thepetitioner/original defendant in Spl. Civil Suit No. 17/2016. Before takinginto consideration the contention of rival parties, it would be absolutelynecessary to keep into mind the nature of proceeding pending before thelearned Trial Court. Undisputedly, the respondent-plaintiff is terminatedfrom the services of petitioner on 28th March, 2016, which reads thus:“Subject :- Immediate termination of your services. Dear Mr. Abhay Kulkarni,You are working in our Waluj plant as a Dy.Manager- Maintenance w.e.f. 07.08.2012. 927.wp1734.23.odt1 of 7 It is observed that your overall performance is notas per the expectations of the management. You weregiven sufficient opportunities to improve upon yourperformance from time to time, but we regret to informyou that there is no improvement in your performancetill today.In view of the above, management has decided toterminate your services from the company withimmediate effect, that is from 28.03.2016, as perservice rule applicable to your category of employeesand you will be paid 2 months Gross salary in lieu asper your notice period. Please contract our HR department of your full &final settlement, after completing required formalities.”3.The respondent/plaintiff being aggrieved by the said order oftermination filed suit before the learned Trial Court seeking damages onthe ground that his termination is illegal. The petitioner-defendant filedwritten statement and took various defences including the defence inrespect of the mental fitness of plaintiff. The learned Trial Court framedissues on 4th September, 2018. Plain reading of letter of terminationindicates that the termination is effected only on the ground that theperformance of respondent is not as per expectations of managementand there is no improvement in performance. Except for this reasontermination has not been effected on any other ground includingpurported reason of mental illness of respondent. The suit is filed by therespondent for challenging termination being illegal and compensation /927.wp1734.23.odt2 of 7 damages are sought from petitioner/Employer. A question arises as towhether having regard to the scope of suit, there would be any otherissue for adjudication before Trial Court, except legality of termination.Since, this issue is not raised in this petition, this Court refrains to recordany finding in that regard.4.The plaintiff completed his evidence and thereafter examiningone witness, the defendant closed its evidence on 5th February, 2021.Thereafter the matter was posted for final hearing. In the meantime, thepetitioner/plaintiff had preferred an application before the Trial Courtbelow Exhibit 52 seeking issuance of witness summons to the Doctorpurportedly treating plaintiff for his alleged mental illness. The saidapplication was dismissed by the Trial Court by passing an order dated12th February, 2020. This order was challenged before this Court in WritPetition No. 5851 of 2021 unsuccessfully. Thereafter present applicationi.e. Exhibit 92 came to be filed on 30th September, 2021 for amendmentto the written statement and also to seek permission to lead additionalevidence by invoking inherent powers of Civil Court under Section 151 ofthe Code of Civil Procedure. 5.Learned Trial Court after hearing both sides passed impugnedorder rejecting application Exhibit 92.927.wp1734.23.odt3 of 7 6.Learned counsel for the petitioner submits that the facts andcircumstances in which the present application came to be filed showsthat there is no deliberate or intentional act on the part of the defendantin making such application at this stage. It is his submission thatconsidering the fact that the application for the issuance of the witnesssummons to the Doctor was rejected on the ground that there was noevidence to substantiate such prayer, a request was made to theconcerned Doctor for providing the said documents which request wasrefused in view of the the provisions of Mental Healthcare Act. It is thushis contention that in view of afore-stated facts it is right of thedefendant to make application for amendment of written statement andto lead further evidence in the matter. Learned counsel for the petitionerhas placed reliance on the judgment in case of Garware-Wall Ropes Ltd.Vs. Shashikant Bhalchandra Garware, 2011(4) Mh.L.J. 265 and State ofBihar and others Vs. Modern Tent House and Another, (2017) 8 SCC 567.7.The application though is mentioned to have been filed byinvoking provisions under Section 151 of the Code of Civil Procedure,provisions of Order VI Rule 17 would apply hereto. The inherent powerof the Civil Court under Section 151 of CPC can be exercised providedthere is no other specific provision for the same. In such circumstances,it is incumbent on the part of this Court to take into consideration the927.wp1734.23.odt4 of 7 relevant provisions of Order VI Rule 17 which is reproduce thus:“17. Amendment of pleadings.- The Court may at anystage of the proceedings allow either party to alter oramend his pleadings in such manner and on such termsas may be just, and all such amendments shall be madeas may be necessary for the purpose of determining thereal questions in controversy between the parties:Provided that no application for amendment shallbe allowed after the trial has commenced, unless theCourt comes to the conclusion that in spite of duediligence, the party could not have raised the matterbefore the commencement of trial.”.After the amendment to Order VI Rule 17 it is duty of theCourt to consider as to whether there is a due diligence on the part ofthe party to make an application after the stage of commencement oftrial.8.The facts as they depict on from record show that the suit isfiled in the year 2016, issues were framed on 4th September, 2018 andthe evidence of the defendant is closed on 5th February, 2021. Thus, thestage at which the application is filed is squarely covered by the provisoto Order VI Rule 17 which provides that no application for amendmentshall be allowed after the Trial be commenced unless there is specificaverment of due diligence and the Court comes to the conclusion that inspite of due diligence, the party could not raise the matter before thecommencement of trial. As far as the amendment sought by thedefendant is concerned, the said amendment is purported request made927.wp1734.23.odt5 of 7 by the defendant to the Doctor for providing the treatment record of theplaintiff. In the written statement, the defendant has already taken aplea about purported medical mental illness of the plaintiff and issue isalso framed accordingly to that effect.9.Record indicates that application filed by petitioner videExhibit 52 was rejected on the ground that there was no record to justifythe issuance summons to the Doctor, which order is confirmed by thisCourt, present application (Exhibit 92) therefore is filed to overcome theorder of rejection of earlier application (Exhibit 52). It is relevant to notethat Trial Court while rejecting the application (Exhibit 52) had observedthat there is no material on record to indicate the witness summons isrequired to be issued to the Doctor. Thus, the act of the filing ofapplication for amendment of the written statement and to lead furtherevidence nothing but to circumvent order passed by the Trial Court whichis confirmed by this Court, which mode is not permissible to thepetitioner. Mere invocation of provision of Section 151 of CPC, would notcome to help to petitioner to overcome earlier order.10.Apart from this, when the defendants have closed theirevidence on 5th February, 2021 and considering the stage of the trial,there was absolutely no reason or justification for the Trial Court to allowthe amendment. In the facts of the case, no prejudice will cause to the927.wp1734.23.odt6 of 7 defendant if the amendment is not allowed as already defence has beenraised about alleged mental status of petitioner. This Court is ofconsidered view that filing of application for amendment in this manneris nothing but intended to protract the trial. Thus, this Court finds nosubstance in the challenge to impugned order. Having regard to the factthat suit is pending for 8 years, this is a fit case for dismissal of thepetition with cost, which is quantified at Rs.5000/- payable to therespondent-plaintiff by petitioner/defendant.11.Petition stands dismissed in above terms. (R. M. JOSHI, J.)ssp927.wp1734.23.odt7 of 7