1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5207 OF 2008 Aero Agencies Limited ..Petitioner. Vs. Click Investments & Trading Co. Private Limited and others ..Respondents. .... Mr. Vineet Naik i/b M/s. Kanga & Co. for the Petitioner. Mr. Nishant Sasidharan i/b Mr. E.K. Sasidharan for Respondent No.1. ...... CORAM: DR. D.Y. CHANDRACHUD, J. 19th September, 2008. P.C. : 1. Rule, made returnable forthwith. Counsel appearing for Respondent No.1 waives service. By consent of the learned counsel, taken up for hearing and final disposal. 2. The Petitioner who is impleaded as the Second Defendant to a suit for eviction before the Court of Small Causes ( R.A.E. Suit No.711/1006 of 2006) has instituted these proceedings under Article 227 of the Constitution in order to challenge an order passed by the Trial Judge on 9th June, 2008 allowing an application for amendment under Order 6 Rule 17 of Code of Civil Procedure, 2 1908. The First Respondent to these proceedings is the original Plaintiff. Since the First Respondent has appeared through learned counsel, the Petition has been taken up for hearing and final disposal by consent since the presence of the Second, Third and Fourth Respondents is not necessary at this stage. 3. A suit for eviction was instituted in 1967 by Narendra Javeri to which the Petitioner was impleaded as the Sixth Defendant. The suit was dismissed as settled out of Court on 6th November, 1973 and a copy of the order of the Small Causes is annexed at Exhibit B to the Petition. In paragraph 4 of the Plaint in the said suit it was alleged that Defendants 1 to 5 and Defendant 6 had made a permanent illegal construction in order to enable Defendant No.6 (the present Petitioner) to set up a new office. In paragraph 8 the Plaintiff to the said suit sought to recover mesne profits which have been charged and recovered by Defendants 2 to 5 from Defendant No.6. 4. After the first suit was settled, the First Respondent herein instituted a suit in 1988 (R.A.E. & R. Suit 1208/3720 of 1988). The First Respondent was the new owner of the building 3 and had stepped into the shoes of the Plaintiff in the first suit. In paragraph 4 of the Plaint in the suit which was instituted by the First Respondent the ground of subletting was sought to be taken up. The Petitioner was not impleaded as a party to the second suit. An interim notice was taken out by the First Respondent inter alia for impleading three parties viz. the Petitioner herein and Respondent Nos.3 and 4. Insofar as the Petitioner herein is concerned, the Trial Court by its order dated 21st August, 1995 declined to allow the application for impleadment holding that the cause of action in the earlier suit and the said second suit was one and the same. A decree was passed in the second suit on 18th March, 2008. But, as already noted earlier the Petitioner was not impleaded as a party to the suit. 5. A third suit has now been instituted by the First Respondent (R.A.E. Suit 711/1006 of 2006) for eviction on the ground of non-user, insofar as the Petitioner is concerned. In the suit, an application for amendment was made . The application was allowed by the impugned order dated 9th June, 2008. 6. The grievance of the Petitioner is that the application for 4 amendment could not have been allowed in order to set up a plea of subletting against the Petitioner since such a plea was raised in the first suit of 1967 which was instituted by the predecessor-in- interest of the First Respondent and, which suit was settled. Again, it has been urged, an effort to implead the Petitioner in the second suit failed and the suit proceeded only as against the Second Respondent, Star of India Dairy. In the circumstances, it was urged that a ground for subletting could not have been brought in by way of amendment as against the Petitioner. 7. Learned counsel appearing for the First Respondent who is the Plaintiff states that the amendment which is sought to be made to the Plaint was only in order to set up the ground of profiteering as against the First Defendant to the suit viz. the Second Respondent to these proceedings – Star of India Dairy. Learned counsel has stated that insofar as the Petitioner is concerned, the ground of subletting is not sought to be pleaded as a ground for eviction in the suit which is pending before the Small Causes Court. In view of the statement which has been made on behalf of the First Respondent, Counsel appearing for the Petitioner only submitted that the Court may record the statement 5 and dispose of the Petition with the aforesaid clarification. Since counsel appearing for the First Respondent has now clarified before the Court that the amendment would only relate to the ground of profiteering as against the First Defendant to the suit, this Petition is disposed of in terms of the aforesaid statement. In the circumstances of the case, there shall be no order as to costs. *****