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Gunnaji Bhavaji Vs. Makanji Khushalchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in3Ind.Cas.159
AppellantGunnaji Bhavaji
RespondentMakanji Khushalchand
Excerpt:
.....50 - plaint barred on the face of it--amendment by reference to a document which would bring the suit within time--that document not included in the original list of documents. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition.....1. in this case we cannot agree with the learned judge of the court below that an amendment such as was asked for would convert the suit into a suit of different and inconsistent character. the suit would remain the same based upon exactly the same cause of action except for the addition of one allegation. we think, therefore, that the amendment should be allowed as shown in para. 1 of the memorandum of appeal, but as the controversy has arisen entirely through the negligence of the plaintiffs, we direct that they must pay the costs of the appeal and of the first hearing in the court below including the costs if any of the hearing of the judgment. leave granted to defendants to file a supplemental written statement, if so advised.
Judgment:

1. In this case we cannot agree with the learned Judge of the Court below that an amendment such as was asked for would convert the suit into a suit of different and inconsistent character. The suit would remain the same based upon exactly the same cause of action except for the addition of one allegation. We think, therefore, that the amendment should be allowed as shown in para. 1 of the memorandum of appeal, but as the controversy has arisen entirely through the negligence of the plaintiffs, we direct that they must pay the costs of the appeal and of the first hearing in the Court below including the costs if any of the hearing of the judgment. Leave granted to defendants to file a supplemental written statement, if so advised.


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