1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3917 OF 2008 Prakash Bankatlal Soni & Ors. ...Petitioners vs. Geetanjali C.Dhindale & Ors. ...Respondents Mr.R.D.Soni i/b M/s.Ram & Co. for the petitioners Mr.Surel S.Shah for respondent nos.1,2A-1 to 2A to 2B-1, 1 to 2C, 4A to 4D, 5 to 19, 3A, 3B-1 to 3B-3, 3C and 3D and 13 Mr.V.R.Kasle respondent No.2E CORAM :A.S.OKA,J. DATE : SEPTEMBER 1, 2009 P.C. 1 Heard the learned counsel for the petitioners and the learned counsel for the respondents. On earlier occasions the parties were put to notice that the petition will be heard and decided finally at the stage of admission. 2 The petitioners are the original plaintiffs and the respondents are the original defendants. The petitioners filed a suit for specific performance of the alleged agreement for sale dated 30 th September 1996. An application was made in the pending suit for framing additional issues including an issue whether the defendant nos.1 to 5 prove that they are adivasi (Hindu Mahadeo Koli) by caste? The said application was rejected. In writ petition no.885 of 2008, decided by 2 this court on 25 th February 2008, this court granted liberty to the petitioners-plaintiffs to make an appropriate application before the trial court. An application for amendment of the plaint was filed by the petitioners. By the impugned order dated 7 th April 2008, the said application was rejected. 3 The learned counsel for the petitioners invited my attention to the amendment sought by application at Exhibiy-114. He has invited my attention to the affidavit dated 27 th August 2009 filed by the second petitioner for herself and on behalf of the other petitioners. In the said affidavit, it is stated that the petitioners are not pressing for the amendment in terms of the application at Exh.114 and the petitioners want to carry out only a part of the amendment which is incorporated in the application at Exhibit-114. The part of the amendment, which the petitioners are pressing has been annexed to the said affidavit. By the said amendment the petitioners are seeking to incorporate paragraph 7B after existing paragraph 7A of the plaint. The petitioners are also seeking to incorporate sub paragraphs B-1 and B-2 to the existing paragraph 18 (D). He submitted that the proposed amendment is necessary for effectively adjudicating the dispute involved in the suit. 4 The learned counsel for the respondent opposed the prayer made by the learned counsel for the petitioner. He submitted that the learned trial Judge was justified 3 in rejecting the application for amendment. He submitted that the amendment which is being claimed in this petition deserves to be rejected on the same ground on which the wider amendment sought by the petitioner was rejected by the impugned order. He submitted that what is sought to be pleaded by the amendment is the evidence which is not permissible in accordance with law. 5 I have considered the submissions. Perusal of the text of the amendment showss that by the said amendment, the petitioners want to contend that section 36 of the Maharashtra Land Revenue Code,1966 will not be applicable to the suit land as the same was already converted into non agricultural use. It is submitted that the sale deed executed by the original defendant Nos.1 to 5 in favour of 13 to 19 is illegal. It is contended that the defendant nos.1 to 5 cannot be claim to be Adiwasis. It is submitted that the Revenue Officer could not have granted permission for execution of the sale deed by the respondent nos.1 to 5 in favour of the respondent nos.13 to 19 defendants. An averment was sought to be added that in the event of the court coming to a conclusion that the defendant nos.1 to 5 belong to scheduled tribe, a direction be issued to execute the sale deed after obtaining permission from the concerned authority. 6 The amendment which was originally proposed by the application dated Exh.114 was argumentative in nature. The substantial part of the amendment has been deleted by 4 filing an affidavit in this court which referred to above. A limited amendment sought by the petitioners by filing an additional affidavit dated 27 th August 2009 deserves to be allowed as the said amendment is necessary for effectively adjudicating upon the issues involved in the suit. 7 Hence, I pass the following order : i)Impugned Judgment and order is quashed and set aside. ii)The application at Exh.114 is partly allowed. iii)The petitioners are permitted to carry out amendment to the plaint as per the annexure to the affidavit dated 27 th August 2009. A xerox copy of the said affidavit along with the annexure thereto shall be forwarded to the trial court alongwith the writ of this order. Amendment to be carried out within two weeks from the date of receipt of writ of this order by the trial court. iv)It will be open for the respondents/defendants to file the written statement to the amended plaint within eight weeks from the date on which the amended plaint is served to them. v)All contentions of the parties on merits are kept open. vi)As the suit is of the year 1998, the hearing of the same is expedited. 5 vii)The trial court is directed to conclude the trial on or before end of April 2010. JUDGE