1 wp-4964-11.doc mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4964 of 2011 Maruti Dada Rangat .. Petitioner Versus State of Maharashtra & ors. .. Respondents Mr. Shriram Kulkarni i/b Mr. Sachin Chavan for the Petitioner Mr. Manoj Kadam for Respondent No.2 CORAM : R.M.SAVANT, J. DATE : 15th NOVEMBER, 2011 P.C. : 1 Rule. With the consent of the parties made returnable forthwith and heard. 2 The above Petition takes exception to the Order dated 17-3-2011 passed by the Learned Civil Judge Senior Division the 6th Additional Judge, Small Causes Court, Pune, by which Order the Application Exhibit 165 for amendment of Regular Civil Suit No.949 of 2007 so as to include prayer clause (a-i) came to be rejected. 3 The Petitioner is the original Plaintiff No.5 in Regular Civil Suit No. 949 of 2007. The said suit has been filed by the Plaintiffs for certain declarations in respect of the orders passed by the revenue authorities and for permanent injunction against the Defendant No.2, that he should not 2 wp-4964-11.doc enter in the suit land, should not disturb the lawful possession of the Plaintiff, that he should not evict the Plaintiff from the suit land and that he should not create any third party rights in the suit property. From the point of the view of the present Petition, it is required to be noted that the Plaintiffs have specifically averred in paragraph 2 of the plaint to the following effect that “Therefore the Plaintiffs say that they are the absolute owners of the land Gat No.159 having an area of 11 Acres and 11 Gunthas.” However, after so averring, the Plaintiffs have sought a declaration as mentioned in paragraph (a) of the prayer clauses. The Plaintiffs, therefore, moved the said Application Exhibit 165 so as to include prayer clause (a-i) which is the relief of ownership claimed by them. The ground made by the Plaintiffs that through mistake the said relief was not claimed though averments has been made in the plaint to the said fact and that it is the consistent case of the Plaintiffs in the plaint that they are the absolute owners in the property in question. 4 The concerned Defendants filed their reply and opposed the said Application. The Trial Court rejected the said application on the ground that since the trial has already commenced and since it cannot be said that the amendment is an out come of the setting aside of no Written Statement order against the Defendant No.1(A) and 1(B) and that the case of the Plaintiffs that the said prayer remained to be through mistake 3 wp-4964-11.doc cannot be accepted, rejected the said Application. 5 Heard the Learned Counsel for the parties. As indicated above, there is a specific averment in the plaint that the Plaintiffs claimed to be the absolute owners of the property in question being land Gat No.159 having an area of 11 Acres and 11 Gunthas. Inspite of the said averments, the substantive relief sought by the Plaintiffs as can be seen, from the prayer clause (a) is as regards the declaration in respect of the revenue orders. In my view, credence would therefore, have to be given to the case of the Plaintiff that due to mistake the prayer claiming ownership remain to be made, as otherwise it defies logic that a party who makes an averment of absolute ownership does not make a prayer seeking a declaration to the said effect. 6 In so far as the amendment of pleadings is concerned, though it is well settled that amendment cannot be allowed if the trial has commenced, it is not an inviolable rule, and if sufficient cause is shown then the amendments can be allowed if it results in the complete adjudication of the controversy between the parties. In my view, the Trial Court has erred in rejecting the said application merely on the ground that the trial has commenced. The Trial Court has lost site of the fact that allowing the amendment would settle the controversy between the parties and would also avoid multiplicity of the proceedings. 7 In so far as, the apprehension expressed by the Learned Counsel 4 wp-4964-11.doc appearing for the Respondents that the amendment should not result in a time barred claim being allowed. In my view, the said issue as whether the amendment would relate back to the date of the filing of the suit and whether the same is time barred is expressly kept open for being agitated before the Trial Court. In that view of the matter, the impugned order dated 17-3-2011 is quashed and set aside and resultantly the Application Exhibit 165 for amendment of the plaint is allowed. Resultantly the prayer clause (a-i) is allowed to be incorporated in the Plaint. The Plaintiffs to carry out the amendment in the plaint in terms of the instant Order. The concerned Defendant would be entitled to file their additional written statement to deal with the prayer within the time that would be stipulated by the Trial Court. The parties to appear before the trial court on the date when the suit is fixed for hearing. 8 Rule is accordingly made absolute with the aforesaid terms with parties to bear their respective costs. (R.M.SAVANT, J.)