:1: :1: :1: FARAD CONTINUATION SHEET IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 1509 OF 2008 -------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court’s orders Court’s or Judge’s or directions and Registrar’s Orders Orders -------------------------------------------------------------------------- Mr.H.S.Shreepad Murthy, Adv. for the petitioners. Mr.Anil Singh, Adv. for the respondents. CORAM: S.C.DHARMADHIKARI, J. DATED: 10TH MARCH, 2008. P.C. P.C. P.C. : : : 1. The Amendment Application is rejected by the Trial Court and that is why the Original plaintiff has filed this Writ petition under Article 227 of the Constitution of India. 2. The Original Plaintiff has filed a suit against the Defendant as observed by the Trial Court with specific prayers and the prayers are for Declaration that the Original :2: :2: :2: Defendants have committed encroachment on the suit property. They be restrained from claiming any right in respect thereof and further to remove the fencing and construction made by them. They were also sought to be restrained from carrying out any development work or any other construction on the suit property. 3. Such a suit was sought to be amended by filing an Amendment Application to bring on record the fact that the City Survey Officer appointed as Commissioner to measure the Suit Land, measured the same and prepared a Report showing the encroachment made by Respondent Nos.1 to 3 and a complaint was made to the Assistant Commissioner of Police on 25.8.2005 regarding the encroached portion. However, the Corporation sanctioned the Plan and granted a Commencement Certificate. Therefore, appropriate pleas were sought to be incorporated after making the Bombay Municipal Corporation as a party Defendant. In effect, :3: :3: :3: the prayer was to restrain the further construction activity. 4. The Learned Judge has firstly relied upon an judgement of this court reported in AIR 1993 Bombay page 151 N/s. Vora Automotives P.Ltd vs. Gopalrao Namdeorao Pohre and Ors. which has been overruled by the Division Bench. Therefore, there was no question of the Amendment Application being rejected on that ground. It is not the view of this court any longer that merely because a complaint is made with regard to the sanctioned Plan and construction, that a Civil Court looses the jurisdiction straight away. Therefore, the Trial Court was wrong in relying upon this decision. 5. Even otherwise, the merits of the amended pleas cannot be decided at this stage. All contentions in that behalf being kept open the Amendment could have been granted. :4: :4: :4: 6. The impugned order is ex-facie erroneous and illegal and is therefore quashed and set aside. Chamber Summons No. 994 of 2007 is made absolute in terms of prayer clause (a) and (b). Amendment to be carried out within a period of 2 weeks. Additional Written Statement to be filed within 4 weeks from the date of receipt of a copy of the amended plaint. The question and issues including jurisdiction of the City Civil Court and limitation are kept open, for being raised by the parties. Needless to state, that this would include the issue of maintainability as well. 7. Mr.Singh states that Vakalatnama for the Respondents would be filed within a period of 10 days from today. ***********