1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5516 OF 2009 James Marceline Fernandes ....Petitioner vs 1. Santan Joseph D’Souza & anr. ....Respondents ALONGWITH WRIT PETITION NO. 5517 OF 2009 Ms. Gauri Godse for the Petitioners in both matters. Mr. Vilas B. Tapkir for the Respondents in both the matters. CORAM : S.J. VAZIFDAR, J. DATE : 05TH MARCH, 2010. P.C. :- 1. Rule. By consent, Rule in both the Writ Petitions is made returnable forthwith and heard finally. 2. The Petitioner has challenged the order of the trial Court, rejecting the applications for amendment. The application in Writ 2 Petition No.5516 of 2009 was to amend the Plaint by introducing certain facts and claiming a relief in the alternative. The application in Writ Petition No.5517 of 2009 was to implead two co-owners of the property. 3. The Suit was filed for specific performance of an alleged agreement between the Petitioner and Respondent No.1 dated 10th January, 2005. The Petitioner’s case is that the property was agreed to be sold for a total consideration of Rs.7,92,000/- payable in about five to six years and that the Petitioner had made part-payment of Rs. 1,47,000/-. The Petitioner further contended that the Respondent No.1 had, in breach of the Suit agreement, entered into an agreement dated 24th April, 2007, for the sale of the Suit property to Respondent Nos.2 and 3. The Petitioner, therefore, sought specific performance of the agreement dated 10th January, 2005 and reliefs for cancellation of the agreement dated 24th April, 2007. 4. Respondent No.1 filed her Written Statement on 18th October, 2007, in which she disclosed that she was only one of the co- owners and that the Suit was bad for non-joinder of necessary parties viz. the other co-owners. The Suit agreement was also denied. 3 5. The Petitioner’s application for interim relief was rejected by the trial Court. The Appeal from Order filed by the Petitioner was also rejected on 7th October, 2008. 6. It is thereafter that the above applications for amendment were filed in January, 2009. 7. The amendments do not alter or change the cause of action. There is no question of limitation in the present case. If any question of limitation arises as regards the proposed Defendants in Writ Petition No.5517 of 2009, the question is kept open and the amendment, which I propose granting, will be subject to limitation. 8. The Petitioner has introduced facts, rather details, indicating the manner in which the part-payment of Rs.1,47,000/- was made. The Petitioner has also set out facts as to his ability to pay the balance consideration. The Petitioner has further set out why he was anxious to purchase the property viz. that he already owns an adjoining plot. 9. It would indeed be permissible for the Petitioner to have led evidence regarding these facts even without an amendment. There can 4 be no ground for rejecting the application for these amendments. Nor do I see any reason to reject the application for impleading the other co- owners. Respondent No.1 disclosed in her Written Statement that she was not the sole owner. It is for this reason that the Petitioner sought to implead the other co-owners. In view of this contention, the Petitioner has also sought a decree in the alternative, for specific performance to the limited extent of the first Respondent’s share and her minor son’s share who is proposed Defendant No.5. Whether the pleading is adequate and in accordance with the provisions of the Specific Relief Act or not is another matter. That will be decided at the hearing of the Suit. 10. The trial has admittedly not commenced. In fact, the Suit was only placed for filing the evidence of the Plaintiff. 11. In the circumstances, the impugned order is set aside. Both the applications filed by the Petitioner which are the subject matter of the impugned orders in the above Writ Petitions are allowed. The amendment shall be carried out within eight weeks. Costs shall be costs in the cause. 12. Both the Writ Petitions are, accordingly, disposed of.