ssm sm sm 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 WRIT WRIT PETITION NO. 273 OF 2008 PETITION NO. 273 OF 2008 PETITION NO. 273 OF 2008 Shri Devendra Amrut Goswami ...Petitioner Vs. Shri Gurudatta Chaya CHS Ltd.& Ors. ...Respondents. Mr.D.B.Patil for the Petitioner. Mr.D.Deshmukh for Respondent No.2. CORAM CORAM CORAM : R.V.MORE, J. : R.V.MORE, J. : R.V.MORE, J. DATED DATED DATED : 9th July, 2008 : 9th July, 2008 : 9th July, 2008. P.C. P.C. P.C. . This Court on 4th February, 2008 has issued a notice before admission to the Respondents with intimation that the Petition will be disposed of finally at the stage of admission. Inspite of receipt of the notice, none appears on behalf of Respondent No.1. 2. Heard Mr.Patil, the learned counsel appearing for the Petitioner and Mr.Deshmukh, the learned counsel appearing for Respondent No.2. ( 2 ) 3. Rule. Rule made returnable forthwith by consent of the learned counsel appearing for the parties. 4. By the impugned order, the Co-operative Appellate Court rejected the Petitioner’s application to amend the dispute. Few facts for disposal of the petition are as follows. 5. The Petitioner filed dispute bearing Dispute No.CCT/6/05 in the Co-operative Court, Thane for declaration that he is one of the transferee member of the Respondent No.1 Society in place of transferor member Mr. Chhaburao Kishan Katkade. The Petitioner also claimed further declaration that he never has transferred his right, title or interest in respect of plot with flat bearing Unit No.5 situated in Respondent No.1 society in favour of Respondent No.2 and Respondent no.2 has no right, title and interest in the said flat No.5. The Co-operative Court, Thane dismissed the Petitioner’s dispute and thereafter Petitioner filed an Appeal bearing No.85 of 2007 before The Maharashtra State Co-operative Appellate Court, Mumbai. In an Appeal, the Petitioner filed an application on 03/10/2007 for amendment in the ( 3 ) Dispute. By this proposed amendment, the Petitioner sought to amend prayer clause (b) of the Dispute. The Petitioner also sought to add prayer (d-i). By this prayer, the directions were claimed by the Petitioner to the Respondents to hand over the possession of the said flat. This application was opposed by Respondent No.2 and the same was rejected by the learned Member of the Maharashtra State Co-operative Appellate Court, Mumbai by the impugned order. 6. Having heard the learned counsel appearing for the respective parties and having going through the impugned order, I am of the considered view that the amendment deserves to be allowed. I have gone through the original pleadings as well as proposed amendment and in my opinion, the proposed amendment is neither contrary nor inconsistent with the original pleadings. Even the learned Member of the Maharashtra Co-operative Appellate Court, Mumbai observed in the impugned order that the amendment can be allowed at any stage of the proceedings. 7. The only ground on which amendment is rejected is that the issue of title cannot be gone into by the Co-operative Court. In this regard, the learned ( 4 ) Member of the Maharashtra Co-operative Appellate Court, Mumbai had relied upon the Division Bench judgment of this Court reported in 2007 (5) All MR 2007 (5) All MR 2007 (5) All MR 195, 195, 195, Sanjaykumar S/o Amrutlal Shah & Ors. Vs. Sanjaykumar S/o Amrutlal Shah & Ors. Vs. Sanjaykumar S/o Amrutlal Shah & Ors. Vs. Uttamlal Uttamlal Uttamlal Ratilal Shah (died through L.Rs.) & Anr. Ratilal Shah (died through L.Rs.) & Anr. Ratilal Shah (died through L.Rs.) & Anr.. 8. Now, it is settled position that the merits of amendment cannot be gone into. What is required to be seen is that whether the amendment is consistent with the original pleadings or not. Since, I have already observed that it is not inconsistent or contrary with the original pleadings, in my view, the Petitioner’s application for amendment ought to have been allowed. The learned Member of the Co-operative Appellate Court, Mumbai has rejected the petitioner’s amendment application on a ground which is not sustainable in law. In that view of the matter, I dispose of the Petition by passing the following order:- O R D E R R D E R R D E R 1. The impugned order passed by the learned Member, The Maharashtra Co-operative Appellate Court, Mumbai on 21st November, 2007 below the Petitioner’s application for ( 5 ) amendment filed on 03/10/2007 is quashed and set aside. Consequently, the Petitioner’s above application is allowed. 2. The Petitioner is directed to carry out the amendment within a period of one week from the date of receipt of this order. 3. Rule is made absolute, accordingly. 4. In the facts and circumstances of the case, there shall be no order as to costs. ( R. V. MORE, J.) R. V. MORE, J.) R. V. MORE, J.)