gst 1 wp197.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. WRIT PETITION NO. 197 OF 2011. M/s.Sai Erectors .... ..... .... Petitioner. V/s Chandrakant Madhavrao Shirole & Ors. .... Respondents. Mr.Y.S.Jahagirdar, Sr. Adv. i/by Mr.P.S.Dani, Adv. For the petitioner. Mr.R.A.Thorat with Mr.P.J.Thorat i/by YKS Legal, Adv. For respondents. CORAM: B.R. GAVAI, J. 28th February, 2011. PC: By way of present petition the petitioner challenges the order dated 28.9.2010 vide which the application filed by the respondent No.1-plaintiff for amendment of the plaint came to be allowed. 2. The plaintiff has filed a suit for declaration, injunction and damages. It is the contention of the plaintiff that defendant No.1 has breached the development agreement and also violated the Development Control Rules. The petitioner has therefore prayed for a declaration that the development agreement and also the subsequent development agreement are lawfully terminated. The other ancillary prayers with regard to injunction, possession etc. have also been made in the plaint. 3. During pendency of the petition an application for amendment has been made. Same is allowed. Hence the present writ petition. 4. Shri Jahagirdar, learned senior counsel appearing on behalf of the petitioner submits that by the amendment virtually the entire suit has been substituted. It is submitted that though the original plaint is of 22 paragraphs by the amendment 48 paragraphs are being sought to be added. It is further submitted that by way of amendment the claim of the plaintiff which is barred gst 2 wp197.11.sxw by limitation is sought to be brought in the limitation. Shri Jahagirdar therefore submits that the learned trial Court ought to have rejected the application for amendment. 5. Shri Thorat, learned counsel appearing on behalf of the respondent- plaintiff on the contrary submits that the amendment to the plaint became necessary in view of certain facts which came to the notice of the plaintiff during pendency of appeal before the Appellate Court which was preferred challenging interlocutory order. It is submitted that the learned appellate Court after calling for record from Pune Municipal Corporation found that certain illegalities were committed by the defendant and at that stage it was noticed that a fraud was sought to be played upon the plaintiff and as such application for amendment was filed. Learned senior counsel Mr.Jahagirdar relies upon a judgment of the Apex Court in the case of Sampath Kumar Vs. Ayyakannu & Anr., AIR 2002 SC 3369. Shri Jahagirdar further submits that learned trial Court if it found that the amendment was to be allowed at the most could have allowed the amendment relating it to the date on which the amendment was allowed and not from the date on which the plaint was filed. 6. Admittedly the issues are yet to be framed. As such trial has not commenced. In that view of the matter proviso to Order 6 Rule 17 of Code of Civil Procedure could not be applicable to the facts of the present case. From the perusal of the averments which are sought to be incorporated and comparison thereof with the pleadings in the plaint it cannot be said that the averments sought to be brought on record by way of amendment are not related to the subject matter of the suit. The said averments would show that they are amplifications of the case which is already placed on record by the plaintiff in the plaint. The averments would show that most of the averments which the plaintiff has sought to put on record were necessitated according to him since he came to know of certain facts in the month of July, 2007. In that view of the mater, I do not find that any perversity has been committed by the learned trial gst 3 wp197.11.sxw Court in allowing the application. In so far as the question as to whether amendment wold relate back to the date of filing of the plaint from the date on which the amendment is allowed is concerned, I find that since the petitioner is yet to file additional written statement to the amendment which is permitted, it will be in the interest of justice to permit the petitioner to file additional written statement and raise grounds that are available to them in law. The petitioner can very well contend in the written statement that the amendment which is allowed should not relate back to the date on which the plaint is filed but are related to date on which it is allowed. I find that interest of justice would be served if the learned trial Court is directed to frame an issue to that effect in the event an objection is raised by the present petitioner that the claim made by the petitioner should not relate back to the filing of the plaint but should relate only to the date on which the amendment is permitted. The said issue could be decided along with other issues that would be framed in the suit after the evidence is adduced in that behalf by the parties. With the aforesaid observations Petition stands disposed of.