FARAD CONTINUATION SHEET. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 386 OF 2008 ------------------------------------------------------- Office Notes : Court’s / Judges Office Memoranda : Order. of Coram, apperances : Court’s and Judges : Orders or directions : and Registrars’Orders : -------------------------------------------------------- MR. A.B.VAGYANI FOR THE PETTIONER. MR. ULHAS NAIK FOR RSPONDENT NO. 2(1AA), 2(1AB), 2(B) TO 2(F). SHRI S.S.KANITKAR FOR RESPONDENT NO. 1(C), SHRI P.B. SHAH FOR RESPONDENT NO. 1B(A) 1BB,1BC,1BD,1E,1F,1G. CORAM CORAM CORAM : A.A.Sayed, J. : A.A.Sayed, J. : A.A.Sayed, J. DATE DATE DATE : June 18, 2008. : June 18, 2008. : June 18, 2008. P.C. 1. This writ petition is filed against the order dated 20th November, 2007 passed by the Additional Judge, Small Causes Court and Jt. Civil Judge, S.D. Pune, whereby the application of the petitioner who were the original plaintiffs in the suit is only partly allowed. 2. The suit is for partition, possession and injunction in respect of ancestral properties. The learned Counsel for the petitioner has pointed out that during the pendency of the suit some of the defendants Nos. 1(A) to 1(C) have executed development agreements with the proposed defendant No.6 as also with proposed defendant No.7 and, therefore, they be impleaded as party defendants in the suit. According to the petitioners, they came to know about said agreement for development only after issuance of public notices in September-October, 2006. 3. Learned Counsel for Respondents submitted that there is delay of more than one year in taking out the application for amendment and the case of the petitioners that they came to know about the agreements vide public notice is false. The learned Counsel further submitted that the trial of the Suit is already commenced and, therefore, amendment cannot be granted at this stage and the Learned Trial Judge has rightly rejected the application in so far as it relates to impleadment of Respondent No. 6 and 7. 4. I have considered the rival contentions of the learned Counsel on both sides and perused the impugned order. The learned Trial Judge in the impugned order has observed that the petitioners have produced the copy of only one of the alleged development agreements and they have not stated about the court fee stamp in relation to insertion of alleged development agreement. The learned Trial Judge has also observed thus - "As the plaintiff sought relief of declaration by amendment about development agreement then it is their duty to explain satisfactorily about the Court fee stamp on the basis of alleged development agreement. But the plaintiffs have not explained satisfactorily about it." 5. In my view, the learned Trial Judge ought to have considered the fact that the plaint itself avers that in the event if any further court fees are required to be paid, the plaintiffs are ready and willing to pay the same. Even today the learned Counsel for the petitioners makes a statement that the petitioners are ready and willing to pay the deficit court fees if the amendment is allowed. I am informed that the cross-examination of the petitioners has not yet begun. The properties in question have admittedly been dealt with during the pendency of the suit and therefore the defendant No. 6 and 7 in the suit would be necessary and proper parties, so as to seek effective reliefs by the petitioners and the amendment ought to have been allowed by the Trial Court, to avoid multiplicity of proceedings. Courts are required to be liberal in allowing the amendments, particularly, when the nature of the suit does not change. The delay is not such so as to disentitle the petitioners from seeking the amendment. In my view the -5- Trial Court has clearly erred in not granting the amendment. 6. In this view of the matter, the impugned order is set aside. The petitioner is allowed to amend the plaint. Amendment to be carried out within a period of three weeks from the date of this order, subject to cost of Rs. 1000/- to be deposited with the High Court Legal Services Committee. Costs would be condition precedent. 7. Needless to say that the proposed defendants would be at liberty to file additional written statement, if they so desire. 8. Petitioners to take necessary steps in relation to the additional Court Fees to be paid. 9. The petition shall stand disposed of. ...... [A.A.Sayed,J.] [A.A.Sayed,J.] [A.A.Sayed,J.]