bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO. 69 OF 2008 SUMMONS NO. 69 OF 2008 SUMMONS NO. 69 OF 2008 IN IN IN WRIT WRIT WRIT PETITION NO. 617 OF 2008 PETITION NO. 617 OF 2008 PETITION NO. 617 OF 2008 FLEMINGO DUTYFREE SHOP PVT. LTD. & anr. ... Petitioners V/s UNION OF INDIA & ors. ... Respondents Mr.V.R.Dhond with Shailesh Mendon for petitioners. Ms.Manjula Rao for respondent Nos.1. Mr.P.Rajgopal with Rekha Rajgopal for respondent No.2. Mr.D.J.Khambata, Sr.Advocate with Mr.Farid Karachiwala and Mr.Satyavikram Jagtap i/by Wadia Ghandhy & Co. for respondent No.3. Mr.J.D.Dwarkadas, Sr.Advocate with Mr.Dhirendra Negi & Mr.Z.Dastur for the proposed respondent Nos.5 & 6. CORAM: CORAM: CORAM: J.N.PATEL AND J.N.PATEL AND J.N.PATEL AND SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, JJ. MHATRE, JJ. MHATRE, JJ. DATED: DATED: DATED: 10TH MARCH, 2008. 10TH MARCH, 2008. 10TH MARCH, 2008. P.C. P.C. P.C.: 1. Heard. 2. Learned counsel for the petitioners seeks liberty from this Court to amend the petition so as to implead the additional respondents to the petition as respondent Nos.5 and 6 which was revealed to the petitioners in reply to the chamber summons filed by the respondents 2 and proposed respondents for which he has tendered the draft amendment which consists of amendments being carried out to Schedules A and B as per the draft amendment now tendered before the Court. The learned counsel for the respondents and proposed respondents have received copies. We grant leave to the petitioner to amend the chamber summons accordingly. The learned counsel appearing for the respondents and proposed respondents do not want to file any additional reply to the chamber summons. 3. The learned counsel for the applicant who is the original petitioner submits that these amendments are sought to bring on record subsequent events and that the proposed respondents except respondent No.6 were heard by the Hon’ble Supreme Court when the matter came to be remanded and their presence is necessary for a complete and final adjudication of the real controversy between the parties. 4. The proposed amendments are strongly objected to by the respondents and proposed respondents on the ground that the order of remand by the Supreme Court restricts the petitioners only to agitate the cause of action which arose at the time of filing of the petition. By the proposed amendments, the petitioners are trying to 3 bring on record subsequent events which virtually make the petition as filed before this Court as infructuous and the petitioner can, at the most, file a fresh petition and agitate the issues now proposed to be raised. It is submitted that the petitioner is now trying to plead altogether different cause of action and come with a new case which should not be normally permitted and, therefore, the chamber summons deserves to be rejected. 5. Mr.Janak Dwarkadas appearing for the proposed respondent Nos.5 and 6 has placed reliance on the decision of the Supreme Court rendered in the case of Mohan Mohan Mohan Lal v/s Anandibai & ors., reported in A.I.R. 1971 Lal v/s Anandibai & ors., reported in A.I.R. 1971 Lal v/s Anandibai & ors., reported in A.I.R. 1971 SC SC SC 2177 2177 2177 and particularly drew our attention to para 9 of the reported judgment and submitted that the principle highlighted in the said decision disentitles the petitioners from carrying out the proposed amendments so as to raise any new pleas altogether which were not raised at the initial stage. 6. We have given our anxious consideration to the rival contentions raised at the bar. 7. In our view, considering the back ground of the case and the fact that the parties now proposed to be added 4 to the petition, were heard by the Hon’ble Supreme Court and the Hon’ble Supreme Court in its order remanding the matter to this Court has observed that, "if the parties intend to file any additional documents or affidavit, they shall be permitted to do so latest by 3.3.2008". We find that all the parties were before the Supreme Court when the order came to be passed which includes the proposed respondents. Therefore, in the facts and circumstances, we are inclined to allow the chamber summons. 8. The settled principle of law relating to amendment of pleadings is, Courts should allow all amendments that may be necessary for determining the real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side. The real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. However, Court should not go into correctness or falsity of the case in the amendment, nor record a finding on the merits of the amendment at the stage of considering the prayer for amendment. Courts should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve 5 the ends of justice (R.K.Aggarwal v/s K.K.Modi (2006) 4 (R.K.Aggarwal v/s K.K.Modi (2006) 4 (R.K.Aggarwal v/s K.K.Modi (2006) 4 SCC SCC SCC 385). 385). 385). The proposed amendment sought by the petitioner is primarily to bring on record subsequent events and join parties in whose favour interest is created in the subject matter of petition i.e. relating to award of contract in which the petitioner claims to have stake if he succeeds in the petition and allowed to participate in the tender invited for the said purpose. 9. The chamber summons is, therefore, made absolute in terms of prayer clauses (a), (b) and (c) with no order as to costs. 10. Necessary amendments to be carried out within a week’s time and amended copy of the petition be placed on record and copies of the same be served not only to the respondents but also to the proposed respondents. Thereafter all the respondents are granted time to file their affidavits in reply to the petition as amended, within two weeks thereafter. 11. Matter be listed before the Court after three weeks. (J.N. (J.N. (J.N. PATEL, J.) PATEL, J.) PATEL, J.) 6 (SMT.NISHITA (SMT.NISHITA (SMT.NISHITA MHATRE, J.) MHATRE, J.) MHATRE, J.)