1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1801 OF 2009 Smt.Sheela Bipin Shah. ..Petitioner. V/s. Shri Govinddas Samaldas Gandhi. ..Respondent. Mr.Vishal Kanade i/b. Mr.S.S.Gawde for petitioner. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 26, 2009. DATE : FEBRUARY 26, 2009. DATE : FEBRUARY 26, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the Petitioner. 2. Two separate orders have been challenged in this Petition. The first order challenged is the order passed below Exh. 14 whereby the Petitioner called upon the Trial Court to frame preliminary issue about maintainability of the suit on the assertion that the suit was barred by principle of res judicata. The Court below has rightly rejected this argument on the finding that the cause of action for filing subsequent suit, which is the present suit is entirely different than the cause of action in the former suit. On this finding, it necessarily follows that the principle of res judicata will have no application. In any case, that is a matter which can 2 be answered only after recording of evidence of the respective parties. If so, the suit cannot be straightaway decided by framing preliminary issue as it is not a pure question of law arising on the basis of admitted fact. In the circumstances, no interference in the said impugned order passed by the Trial Court is required. 3. The second order impugned in this Petition is allowing the application preferred by the Plaintiff permitting the Plaintiff to amend the plaint so as to introduce subsequent events which according to the Plaintiff would strengthen the ground of bonafide and reasonable requirement pressed in the suit for eviction as filed. That being discretionary order passed by the Court below at interlocutory stage, no interference in exercise of writ jurisdiction is warranted. 4. The argument of the Petitioner is that the Court has not even adverted to the argument of the Petitioner that the proposed amendment will cause prejudice to the defendants. Some error here and there in the order cannot be the basis to interfere in exercise of writ jurisdiction. 3 5. As aforesaid the order is discretionary order passed at interlocutory stage. Hence, no interference in exercise of writ jurisdiction is warranted. Hence Petition is dismissed. 6. At this stage Counsel for the Petitioner points out that as this Petition was pending, Petitioner was advised not to file additional written statement in the context of amendment in the plaint granted in terms of order dated 5th December, 2008. The Trial Court however, has now ordered that no additional Written Statement is allowed, which will preclude the Petitioner from filing additional Written Statement. In the peculiar circumstances of the present case, the Trial Court may permit the Petitioner to file additional Written Statement provided the same is tendered on or before next date of hearing of the suit before the Trial Court. Ordered accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)