- (1.)Heard Mr. Uday Malte, learned Counsel for the petitioner and Mr. Anilkumar, learned Counsel for the respondents at length. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner, here-in-after referred to as 'plaintiff' has challenged the judgment and order dated 11.2.2010 passed by the Civil Judge (Sr. Dn), Malegaon, below Exhibit-49 in Special Civil Suit No. 76 of 2004. By that order, the learned trial Judge rejected the application taken out by the plaintiff for amending the plaint.
(2.)The plaintiff-M/s Hindustan Computers instituted Special Civil Suit No. 76 of 2004 on 4.9.2004 for recovery of Rs. 44,81,820/- from the respondents, hereinafter referred to as Tapadia RR 'defendants'. The plaintiff was sued as under:-
M/s. Hindustan Computers, Through - Upendra Lad, Age 39 years, Occ: Business.

The defendants resisted the suit by filing Written Statement on 30.10.2004. Issues were framed on 28.10.2005. On 19.6.2009 the plaintiff filed application for amendment of the plaint. The plaintiff proposed amendment in the description of the suit as under:

(a) After "M/s Hindustan Computers" and before "Upendra" following words be added in place of "Through" - "Proprietary concern, Proprietor Mrs. Neeta Upendra Lad represented by General Power of Attorney Holder"

(b) After word "Business", "and Service" words be added.

The plaintiff also proposed to add para-1 (a) after para-1 of the plaint, which reads as under:

1(a) The plaintiff Hindustan Computers is the Proprietary concern and Mrs. Neeta Upendra Lad who is wife of Mr. Upendra Devendra Lad, is a proprietor of Hindustan Computers. Mr. Upendra Devendra Lad as a General Power of Attorney holder for Hindustan Computers renders help to deal with all business transactions of Hindustan Computers. Even at the time of negotiations with present defendants, Mr. Upendra Devendra lad has assisted in negotiating with defendants. The agreement dated 20.2.2003 and subsequent cancellation agreement dated 11.7.2003 have been also executed between the plaintiff and defendants on which Mr. Upendra Devendra Lad has put his signature on behalf of plaintiff on the request by the proprietor. The proprietor of Hindustan Computers Mrs. Neeta Upendra Lad has executed General Power of Attorney in favour of husband Mr. Upendra Devendra Lad on 16.10.2002 and such General Power of Attorney is also notarized with the Notary. Mr. Upendra Devendra Lad personally has knowledge of all the dealings of Hindustan Computers. Mr. Upendra Devendra Lad witnessed and participated in all transactions and dealing with the present defendants, and as such, he is filing the present suit in his capacity as a General Power of Attorney Holder of Mrs. Neeta Upendra Lad for and on behalf of Hindustan Computers.

The defendants resisted the application by filing reply dated 7.8.2009. By the impugned order, the learned trial Judge rejected the application. It is against this order, the plaintiff has instituted the present petition under Articles 226 and 227 of the Constitution of India.

(3.)The petition was admitted by issuing Rule on 20.10.2010 and ad interim relief in terms of prayer Clause (B) was confined to the stay of the suit.