1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1236 OF 2009 1.Navinchandra B.Kothari (since deceased) through L.R. And others ...Petitioners vs. Kundanmal Manmal Ratanchand (since deceased) through 1a Popatlal Kundalmal Jain & Ors. ...Respondents Mrs.S.A.Mudbidri i/b Mr.S.W.Kulkarni for the petitioners Mr.S.M.Khaire for respondent 1Aa to 1D and 2 CORAM :A.S.OKA,J. DATE : SEPTEMBER 1, 2009 P.C. 1 Notice for final disposal has been already issued. The submission of the learned counsel for the parties were heard on 25 th August 2009. By this writ petition, the petitioners (original plaintiffs) have taken an exception to the order dated 11 th November 2009 passed by the trial court on a chamber summons taken out for the amendment of the plaint. By the order impugned, the learned trial Judge allowed the amendment in part by which the petitioners were permitted to bring the legal representatives of the deceased first plaintiff on record. 2 The petitioners filed a suit in the City Civil Court for declaration that the respondents-defendants have no 2 right to re-enter the suit premises more particularly described in the plaint. A prayer was also made for mandatory injunction for directing the respondents to remove themselves from the suit premises. There are other prayers made for mandatory relief. The petitioners claimed that the original plaintiffs no.1 and 2 were monthly joint tenants of the trustees of the Bombay Port Trust in respect of the suit property more particularly described in the plaint. Reliance is placed on the tenancy agreement executed in favour of the original plaintiffs No.1 and 2. It is alleged that one Manmal who was the predecessor of the respondents died on 29 th January 1980 with whom the petitioners had very friendly relationship. On the request made by the said Manmal, the petitioners had allowed him to store the cartons in the suit premises and he used to pay monthly amount towards storage charges. 3 It is alleged that the Bombay Port Trust became aware of the said permission granted to the predecessor of the respondents. Therefore, by letter dated 9 th November 1973, the said permission was revoked. Accordingly, the predecessor of the respondent assured that he would not store any goods if objection is raised. It is alleged after the demise of Manmal the petitioners prevented the respondents from keeping or storing the goods in the suit premises. It is alleged that some 3 times the respondents forcibly stored goods in the suit premises. Reliance is placed on the Advocate s notice dated 28 th July 1981 calling upon the respondents to remove cartons from the suit premises. It is contended that the petitioners-plaintiffs are in exclusive possession of the suit premises. 4 It is necessary to refer to the prayers made by the petitioners in their chamber summons seeking amendment to the plaint. As stated earlier, by the impugned order, the trial court has permitted a part of the amendment. In the chamber summons, an amendment was sought for impleading the legal representatives of the first plaintiff which has been already permitted. The second part of the amendment is for incorporating paragraph 10A. By adding the said paragraph, reliance is sought to be placed on the order made on 25 th February 1986. It is sought to be alleged that the respondents have acted in violation of the said order. Paragraph 10-B is sought to be added for referring to interim order passed against the petitioners in a suit filed by their lessors. It is alleged that the original respondent nos.1 and 2 unauthorisedly made a structure on permanent basis. Paragraph 10(d) is sought to be incorporated for contending that the petitioners have no authority to sublet even a potion of the suit premises without permission in writing of the lessors. Paragraph 10(e) is 4 sought to be added for pointing out that the 2 nd petitioner has been confined to bed due to Hypertension, Amyotrophy Neuropathy and with other ailments and diabetes and pain in both the lower limbs and was a regular patient of Lilavati Hospital. Therefore, it is contended that he could not take action against the respondents. Paragraph (10-f) is sought to be added for stating that the plaintiffs have tried to settle the dispute with their lessors, but the matter was not settled. Paragraph (10-g) contains averment in support of additional relief sought to be claimed by way of amendment. Thereafter, an amendment is sought to prayers in the suit by incorporating a prayer for decree of eviction against the respondents as well as a prayer for appointing the Court Commissioner during the pendency of the suit. A prayer is sought to be added for a direction to pay mesne profits. By adding paragraph 15-A, amendment is proposed for the purpose of valuing the suit for the purpose of court fees in view of additional prayer of decree of possession. 5 The learned trial Judge observed that the proposed amendment will change the nature of the suit and will compel the court to decide whether the respondents have made construction and whether the petitioners are entitled to possession. 6 The leaned counsel for the petitioners submitted 5 that the amendment has become necessary by virtue of subsequent events which occurred during the pendency of the suit of the year 1982. She submitted that the constraints imposed by amended Rule 17 of Order VI of the Code of Civil Procedure,1908 will not apply and therefore, amendment ought to have been allowed. 7 The leaned counsel for the respondents supported the impugned Judgment and Order by pointing out that there is no explanation as to why the petitioners have not made the application for amendment earlier. He urged that the application for amendment could have been filed long back. He submitted that the trial court is right in holding that the proposed amendment will change the nature of the suit. 8 I have carefully considered the submissions. It must be noted here that the suit is filed in the year 1982 i.e. Before coming into force of the amendment to the said Code made with effect from 1 st July 2002. Therefore, constraints imposed by the said amendment on the power of court under Rule 17 of Order VI will not apply to the present suit. In proposed paragraph 10-c, it is sought to be contended that in or about September- October 2005, the original defendant erected/constructed a permanent structure. Therefore, a prayer is sought to be made for eviction of the respondents. Moreover, the 6 other paragraphs which are sought to be added are explanatory nature. The petitioners want to contend that in view of the terms of tenancy, they were not entitled to allow any one else to use the suit premises without permission of their lessors. 9 The questions whether the structure erected is permanent in nature or whether the construction was really erected in the year 2005 are required to be decided on evidence. The trial court could not have rejected the prayer for amendment on the ground that the nature of the suit will be changed. The prayers which are sought to be added in the plaint are on the basis of alleged subsequent events. As the suit has been filed prior to 1 st July 2002, the court ought to have adopted a liberal approach for considering the prayer for amendment. The prejudice which may be caused to the respondents could have been compensated by ordering payment of costs. The impugned order rejecting the prayer for amendment is erroneous and the same needs modification. The petitioners will have to pay costs to the respondent. The amount of costs is quantified at Rs. 7500/-. 10 Hence, I pass the following order : i) Impugned Judgment and order dated 11 th November 2008 7 is modified. ii)The chamber summons no.21 of 2006 is made absolute in its entirety. iii) The petitioners shall pay costs of Rs.7500/- to the respondents within a period of eight weeks from today. Payment of costs will be a condition precedent. Deposit of costs with the trial court within stipulated period will be treated as sufficient compliance. The trial court will permit the petitioners to carry out amendment immediately after the amount of costs is paid. iv)The trial court will permit the respondents to file the additional written statement to the amended plaint within a period of eight weeks from the date on which a copy of the amended plaint is served to the respondents. It will be open for the respondents to raise all permissible contentions in the additional written statement. v) Writ petition is allowed in above terms. JUDGE