- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No. 3838 OF 2009 Mrs. Shamsunnisa Gulam Rasool Patel ... Petitioner Vs. Mrs. Farhana Juber Patel & Ors. ... Respondents *** Mr. Sandesh Patil i/b Ajit A. Salvi, for the Petitioner. Mr. R. D. Suryawanshi, for Respondent No.1. *** CORAM : A. S. OKA, J. DATE : JULY 31, 2009. PC :- 1. Heard the learned counsel for the petitioner and the learned counsel for the first respondent. By this petition under Article 227 of the Constitution of India, the petitioner who is the first defendant in the suit filed by the first respondent, has taken an exception to the order dated 18th March 2009 passed by the trial Court by which an application for amendment of plaint filed by the first respondent has been allowed. 2. The first respondent filed a suit for declaration and injunction in January 2009. The name of the third defendant in the cause title of the suit is “Mrs. Tabasu Asmat Patel”. It appears that Court bailiff submitted report dated 7th February 2009 recording - 2 - that third defendant was not residing at the address mentioned in the cause title of the plaint. The bailiff’s report records that the correct name of the third defendant is not Mrs. Tabasu Asmat Patel but it is Tabassum Juber Patel. The report of the bailiff discloses the address of the said Tabassum Juber Patel. 3. An application for amendment of the plaint was made by the first respondent. In the application it was stated that an order was passed for effecting service of summons on 3rd defendant by substituted service. The application recites that as the report of the bailiff shows that the name of the third defendant is wrongly written in the cause title, therefore, an application for amendment of plaint was made being for correcting the name of the third defendant as “Mrs. Tabassum Patel”. A prayer was also made for amending the address of the third defendant in the cause-title. The said application was opposed by the petitioner as well as by second defendant. By the impugned order, said application has been allowed. The learned Judge while allowing the application noted that the third defendant appears to be a widow. The learned Judge also noted the contention raised by the petitioner and the second defendant that Tabassum Patel is the widow of Juber Patel. The learned Judge observed that whether the said Tabassum Patel is the widow of Juber Patel or the widow of Asmat Patel, the fact remains that she is Mrs. Patel. The learned Judge, however, kept the issue of identity of the third defendant open. 4. The learned counsel appearing for the petitioner - 3 - pointed out that a public notice was published in the newspaper on 27th November 2008 on behalf of the petitioner, second defendant and Mrs. Tabassum Patel. It is stated in the said notice that the said Tabassum Patel was a widow of Juber Patel. He pointed out that even in the report of the bailiff the correct name of third defendant has been given as “Tabassum Juber Patel”. He submitted that though application for amendment is based on the report of the bailiff, by the proposed amendment the first respondent is seeking to amend name of third defendant as Mrs. Tabassum Patel. He submits that the first respondent has dishonestly not incorporated the name of the husband of the third respondent. He submitted that amendment has been introduced with the mala fide intention, of serving the summons on a non-existing person. He, therefore, submitted that such a mala fide amendment ought not to have been allowed. 5. The learned counsel for the first respondent supported the impugned order. The submission of the learned counsel appearing for the first respondent is that the first respondent has specifically pleaded in the plaint that though the third defendant claims to be the widow of said Juber Patel, in fact she is a widow of one Asmat Gulam Rasool Patel. He submitted that amendment is made consistent with the case made out in the plaint. He further submitted that no interference in the impugned order is called for. 5. I have considered the submissions of the learned counsel for both the parties. In the suit filed in January 2009, an amendment has been permitted in March 2009 when suit is at a - 4 - preliminary stage. Normally, it is the choice of the plaintiff to decide who should be the defendant. If it is case of the petitioner that third defendant is not a widow of Asmat Patel but she is the widow of Juber Patel, it is obvious that first respondent is taking a risk. The learned Judge while passing the impugned order has kept the issue of identity of the third defendant open. It is obvious that merely because the amendment is allowed that does not mean that contention raised by the first respondent that third defendant is the widow of Asmat Patel and not widow of Juber Patel is accepted by the Court. It is obvious that the amendment has been carried out by the first respondent at her own risk as to its consequences. By grant of amendment, none of the contentions raised by the parties have been finally decided and the said contentions regarding the title as well as identity and status of third defendant always remain open. After the amendment is carried out, it is obvious that petitioner and other contesting defendants can file additional written-statement raising appropriate contentions. 5. Subject to what is stated above, no case is made out for interference. The petition is accordingly rejected by keeping all the contentions open. [ A. S. OKA, J.]