1 wp-8800-11.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8800 OF 2011 Minoo Nadershah Anklesaria & Ors .. Petitioners Versus Vijay D. Karir & Ors. .. Respondents Mr. A.A.Kocharekar for the Petitioners Ms Trupti Gohil for the Respondent No.1 CORAM : R. M. SAVANT, J. DATED : 15th December, 2011 P.C. 1 The Order impugned in the above Petition is one rejecting the Application for amendment of the Written Statement. The said Order is dated 22-6-2011 passed by the Learned Judge of Bombay City Civil Court. 2 The Respondent No.1 herein i.e. the original Plaintiff has filed L.C. Suit No.3340 of 2007, challenging the notice issued to him by the Mumbai Municipal Corporation under Section 351 of the Mumbai Municipal Corporation Act, 1888. The unauthorised construction is the alleged loft in the shop premises in the building in question. The building wherein the shop premises are situated is of the ownership of 2 wp-8800-11.sxw the Petitioners. The Petitioners have been impleaded as the Defendant Nos.3 to 7 in the said suit, though initially they were not the parties to the said suit. The Petitioners have filed their Written Statement on 3-10-2008. The Respondent No.2 i.e. Original Defendant No.1 Municipal Corporation has also filed its Written statement on 23-7-2008. Both the Written Statements disclose that the action under Section 351 has been taken by the Corporation pursuant to the complaints made by the Petitioners. The Petitioners moved the instant application for amendment of the plaint by way of Chamber Summons No.642 of 2010. By the said proposed amendments, about 15 documents are sought brought on record. The said amendments relate to the proceedings filed by the Respondents and the said tenants against the Petitioners which proceedings have culminated in the order dated 8-7-2005 passed by the Court of the Learned Metropolitan Magistrate thereby rejecting the complaint filed by the Applicant i.e. the Respondent No.1 herein, and the Order dated 30-3-2007 passed by the Learned Additional Sessions Judge, Greater Bombay, thereby dismissing the Revision Application filed by the Applicant i.e. the Respondent No.1 herein against the said order. The Orders passed by the said Courts are sought to be relied upon in the said proposed amendments. 3 The Trial Court on consideration of the said application was of 3 wp-8800-11.sxw the view that the Petitioners have not given explanation as to why the said facts which have transpired prior to the filing of the suit have not been placed on record in the Written Statement as originally filed and, therefore, the Petitioners have not satisfied the due diligence test. The Trial Court has also held that how the said amendments are necessary for adjudication of the said suit, has also not been explained, in fact there is no averment to that effect in the application. 4 In so far as, the amendments of pleadings are concerned, it is well settled that even if the trial has commenced, the Courts are not powerless and for just and sufficient reasons an amendment application can be allowed even at a late stage. However, the proponents of the amendment have to satisfy the due diligence test as to why the facts contained in the amendment application could not be brought earlier on record. The second test is that the said amendments are necessary for a complete adjudication of the dispute between the parties. In the instant case, as indicated above, the petitioners have already filed their Written Statement on 3-10-2008 and in turns the Petitioners have stated in the said Written Statement that it is on account of their complaint that the action has been initiated by the Corporation against the Respondent No. 1 herein i.e. the Original Plaintiff. The Petitioners have also averred as to how the construction is illegal and as to why the same cannot be 4 wp-8800-11.sxw regularised by the Corporation. The documents which the Petitioners now seek to bring on record as can be seen from the list of documents, are the copy of the FIR, the Order passed by the Learned Metropolitan Magistrate as well as the Order passed by the Sessions Court, some photographs and letters. The said material therefore, as well as the averments are in the nature of evidence. It is well settled that what can be pleaded are only material facts and not evidence. In my view, therefore, the Order of the Trial Court rejecting the said Application for amendment cannot be faulted with. 5 It is also required to be noted that the evidence of the Plaintiff is already complete and the amendment application was moved at the stage when the affidavit of evidence has been filed by the Petitioners. The Trial Court was therefore, right that allowing the said amendments which, apart from the fact that the same could not be allowed for the reasons mentioned in the Order, would unnecessary delay or prolong the suit which is at an advanced stage. 6 The Learned Counsel for the Petitioners sought to rely upon the Judgment of a Learned Single Judge of this Court in the matter of Bharat Petroleum Corporation Ltd. Vs. Precious Finance Investment Pvt Ltd. reported in 2007(1) Mh.L.J. 331. The said Judgment is relied 5 wp-8800-11.sxw by the Learned Counsel for the Petitioners to support his contention that the amendments could only be allowed if it is found to be necessary for purpose of determination of the real question and controversy between the parties even after the commencement of trial. The said Judgment therefore in my view, does not in any way further the case of the Petitioners. 7 In that view of the matter, no case for interference with the impugned order of the Trial Court is made out. The Writ Petition is accordingly dismissed. ( R. M. SAVANT, J. )