ARUN GOVIND DAMLE & OTHERS v. RADHESHYAM SOMANI & OTHERS

Shri Ghare, the learned counsel for the petitioners, submitted that the Joint Charity Commissioner could not have allowed the application or for that matter, could not have even entertained the application when the matter was closed for judgment. The learned counsel submitted that the parties are not permitted to file an application before a Court when the matter is closed for judgment. The learned counsel relied on the judgment of the Hon'ble Supreme Court reported in AIR 1964 SC 993 (Arjun Singh Versus Mohindra Kumar & others) and the judgment of this Court reported in 2009(1) All M R 165 (Maharashtra Industrial Development Corporation & Another Versus M/s Gajanan Printing Press Office & others), wherein the judgment of the Hon'ble Supreme Court was followed. The learned counsel submitted that an objection was raised by the petitioners as early as on 05.06.2008 and the Joint Charity Commissioner could not have allowed the amendment application though there was an inordinate delay in filing the same. It is submitted that the amendment application cannot be allowed because the appeal would be barred by limitation against the respondents, who are sought to be joined as parties by the proposed amendment. In the facts and circumstances of the case, according to the learned counsel, the amendment application could not have been allowed. The learned Assistant Government Pleader and the learned counsel for the respondent nos.1 to 3, on the other hand, supported the impugned order and submitted that the law laid down by the Hon'ble Supreme Court in 3 WP3692-12 AIR 1964 SC 993 (Arjun Singh Versus Mohindra Kumar & others) cannot be applied to the facts of this case. It is submitted on behalf of the respondents that admittedly, the parties, sought to joined by the proposed amendment, were necessary parties as the petitioners had also stated so in their objections and, hence, the Joint Charity Commissioner was perfectly justified in permitting the respondent nos.1 to 3 to join the necessary parties to the appeal. It is submitted that the Joint Charity Commissioner rightly considered the principle that the disputes have to be effectively and completely decided between the parties on merits and by applying that principle has rightly allowed the application subject to payment of costs of Rs.15,000/-. The learned counsel for the respondent nos.1 to 3 relied on the judgment reported in 2004(2) Mh.L.J. 717 (Baburao s/o Sahebrao Deshmukh Versus Maharashtra Insecticides Limited, Akola & others) to substantiate his submission that the amendment of the pleadings can be allowed at any stage of the proceedings including the stage, when the case is closed for judgment. On hearing the learned counsel for the parties and on a perusal of the impugned order, it appears that the Joint Charity Commissioner did not commit any error in allowing the amendment application filed by the respondent nos.1 to 3. It is not in dispute that the parties, sought to be joined, were necessary parties to the appeal. It is no doubt true that there was a considerable delay on the part of the respondent nos.1 to 3 in filing the amendment application and, hence, the Joint Charity Commissioner has rightly compensated the petitioners by directing the respondent nos.1 to 3 to deposit costs of Rs.15,000/-. Since the parties, 4 WP3692-12 sought to be joined, were necessary parties, the Joint Charity Commissioner rightly held that it was necessary for the respondent nos.1 to 3 to join them, so that the controversy between the parties could be effectively and completely decided on merits. The approach of the Joint Charity Commissioner in allowing the application is just and proper as the amendment application could not have been rejected only because the same was filed belatedly. The judgment reported in AIR 1964 SC 993 (Arjun Singh Versus Mohindra Kumar & others) and relied on by the counsel for the petitioners is distinguishable on facts and cannot be made applicable to the facts of this case. In the case before the Hon'ble Supreme Court, the Hon'ble Supreme Court was considering the provisions of Order IX Rule 7 of Code of Civil Procedure. In the case before the Hon'ble Supreme Court, an application was filed by the party under the provisions of Order IX Rule 7 of the Code of Civil Procedure and since the matter was closed for judgment in that case, the Hon'ble Supreme Court observed, by considering the provisions of Rule 7, that there was nothing to be heard on the adjourned date as the matter was fixed for judgment and, hence, the application could not have been filed by the party under Order IX Rule 7 of the Code of Civil Procedure. Such is not the case here. In the instant case, the respondent nos.1 to 3 had filed an application for amendment of the memorandum of appeal and it was not an application under Order IX Rule 7 of the Code of Civil Procedure. In fact, this Court had held in the judgment reported in 2004(2) Mh.L.J. 717 (Baburao s/o Sahebrao Deshmukh Versus Maharashtra Insecticides Limited, Akola & others) and relied 5 WP3692-12 on by the counsel for the respondent nos.1 to 3 that the amendment of the pleadings can be allowed at any stage of proceedings including the stage when the case is closed for judgment. Since Rule 17 of Order VI opens with words “The Court may at any stage of the proceedings allow either party.......”, it is clear that the stage could be even the stage when the matter is closed for judgment. The other submission made on behalf of the petitioners that the amendment could not have been allowed as by the proposed amendment, the respondent nos.1 to 3 would be permitted to file a time barred appeal against the parties who are sought to be joined, is ill-founded and is liable to be rejected. A party can be joined under Order I Rule 10 of the Code of Civil Procedure or by an application under Order VI Rule 17 of the Code of Civil Procedure at any stage of the proceedings and also at a stage when the matter is closed for judgment. There is hardly any scope for interference with the impugned order. It appears that the petition has been filed only with a view to delay the hearing of the appeal. In the result, the writ petition is dismissed with no order as to costs. On an oral request made on behalf of the petitioners, the interim order is continued for a period of two weeks. The same would cease to operate immediately thereafter. APTE JUDGE