JWALADUTTA JANKIDAS Vs. JAYANT BHAVANJI SONI

JUDGEMENT

(1.) This interim application has been taken out by the original Plaintiff in the commercial summary suit. The application seeks amendment of the plaint inter alia by deleting three prayers in the suit as also averments in the plaint in support of these prayers.

(2.) The prayers, which the Plaintiff seeks to delete, concern attachment of certain properties of the Defendants, which are set out therein. The prayers really appear to be in the nature of an application for attachment before judgment, though they are framed as a main prayer in perpetuity and interim prayers in support of it. That was, in fact, one of the grounds on which the original order of conditional leave to defend passed on a summons for judgment taken out by the Plaintiff herein was set aside by the appeal court. The appeal court was of the view that the learned Single Judge, who decided the Plaintiff's summons for judgment, did not consider the Defendants' submission that these prayers amounted to a relief outside the purview of Order 37 Rule 2 of the CPC. The appeal court, accordingly, set aside the order of conditional leave and remanded the summons for judgment for a fresh hearing before the learned Single Judge.

(3.) Mr.Narula, learned Counsel appearing for the Defendants, who opposes the interim application, submits that the Defendants have acquired an important right to defend the present suit as framed, i.e. as a commercial summary suit, and seek an unconditional leave to defend on the ground that these prayers (which are presently sought to be deleted) amount to a relief outside the ambit of Order 37 Rule 2 of CPC, and no amendment which takes away such right can be allowed. Learned Counsel relies on judgments of the Supreme Court in cases of Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patil AIR 1957 SC 363, Estralla Rubber vs. Dass Estate (Pvt.) Ltd. (2001) 8 SCC 97, Peethani Suryanarayana vs. Repaka Venkata Ramana Kishore (2009) 11 SCC 308, and Revajeetu Builders and Developers vs. Narayanaswamy and Sons (2009) 10 SCC 84 in support of his submission.