SRJ wp-9217-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9217 OF 2009 All Saint Church .. Petitioner V/s. General Manager, Central Railway & Others .. Respondents. Mr.S.V.Sadavarte, for Petitioner. Mr.A.M.Samant, for Respondent Nos.1 to 5. CORAM : A.S.OKA, J. DATE : 29 th MARCH,2010. P.C. : 1] Notice for final disposal was issued by this Court. 2] Heard Learned Counsel for the parties. The Petitioner is the Original Plaintiff and the Respondents are the Defendants. The suit for declaration and injunction has been filed by the Petitioner in the year 2008. The first prayer in the suit for declaration is that the alleged action of the Respondents of entering into the suit property belonging to the Petitioner and attempt to dispossess the Petitioner without following due process of law is illegal. A prayer for permanent injunction has been made in the suit. SRJ wp-9217-09.sxw 2 3] The suit property described in the plaint is land bearing Railway Survey No.116, ad-measuring about 17,233.16 sq. feet more particularly described in the paragraph 1 of the Plaint. An application for amendment of the plaint and the application at Exhibit 5 for temporary injunction was made by the Petitioner. By the proposed amendment, the Petitioner sought permission to correct the description of the suit property by stating that the area of the suit property is 18,637.35 sq. meters equivalent to 20,0612.44 sq. feet. By the impugned order, the said application has been rejected by the learned Trial Judge. 4] The learned Counsel appearing for the Petitioner submitted that the suit was filed in the year 2008 and in the year 2009, the application for amendment of the plaint was made for incorporating the correct area of the suit property. He submitted that there was no reason to deny the said amendment. The learned Counsel appearing for the Respondents submitted that in the suit property bearing Railway Survey No.116, the Petitioner has no right and the Petitioner is only allowed to conduct a school and look after the management of the Church. He pointed out that application at Exhibit 5 has already been allowed. He submitted that the order below application at Exhibit 5 relates to an area of 17,233.sq. feet and if the description of the suit property is allowed to be corrected, the Petitioner will claim that temporary injunction has been granted in respect of the entire area of 18,637.35 sq. meters. He submitted that the Respondents SRJ wp-9217-09.sxw 3 cannot be deprived of their own property. 5] I have given careful consideration to the submissions. By the proposed amendment, the Petitioner desires to increase the area of the suit property described in the plaint. Whether the Petitioner is entitled to any relief in respect of the said larger area is a question on merits of the suit. The prayer to amend the description of the suit property could not have been denied to the Petitioner especially when the hearing of the suit has not concerned. The application for amendment was moved within one year from the date of institution of the suit only for correcting the area of the suit property. 6] As far as application at Exhibit 5 is concerned, the same has been allowed by the judgment and order dated 15th July, 2009. The order of temporary injunction naturally operates in respect of the suit property ad- measuring 17,232.16 sq. feet. The order of temporary injunction was granted considering the case made out in the unamended plaint. The Petitioner cannot be permitted to amend the description of the property in Exhibit 5 as the same has been already disposed of. After amendment is carried out in the plaint, it is for the Petitioner to take out the appropriate application as regards the area added by the amendment. SRJ wp-9217-09.sxw 4 7] Hence, I pass the following order:- (i) The impugned order dated 24th August, 2009 is quashed and set aside; (ii) The application at Exhibit 33 is partly allowed and permission is granted to amend the plaint as prayed; (iii) The prayer for amendment of the application at Exhibit 5 is rejected. (iv) Amendment shall be carried out within a period of two weeks from the date on which the writ of this order is received by the Trial Court. It will be open to the Respondent to file additional written statement within a period of eight weeks from the date on which a copy of amended plaint is served to them. (v) All contentions on merits are expressly kept open. (vi) It is made clear that notwithstanding the permission granted to amend the plaint, the order of temporary injunction dated 15th July, 2009, will apply to the suit property as described in the unamended plaint. (vii) The Trial Court will decide the suit as expeditiously as possible and preferably before the end of this year. (A.S.OKA, J. ) SRJ wp-9217-09.sxw 5