-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.319 of 2008 Ashok Balwant Patil ..Petitioner vs. 1. Mr.Shyamsunder Radheshyam Agarwal and others ..Respondents Shri K.S.Dewal for petitioner. Shri S.D.Patil for respondent no.1. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 15th February, 2008 15th February, 2008 15th February, 2008 P.C. P.C. P.C. 1. The petitioner is the original plaintiff in suit no.433 of 2007. That suit is filed for a declaration that the Release deed dated 26th December, 2005 which is allegedly executed by the plaintiff is a forged, fabricated and manipulated and, therefore, not binding on the plaintiff. The same cannot be acted upon by the original defendant no.1. There are several other reliefs based upon which the relief of declaration claimed in prayers (a) to (g) of the plaint. 2. It appears that injunction application was moved. Ad-interim order was granted and during the course of injunction application, -2- considering the reply that was filed thereto by the first defendant that the petitioner applied for amendment to the plaint and joinder of the parties. 3. It is contended in the amendment application that it is necessary to incorporate the plea that one Estate Investment Company private Limited had executed the registered deed of conveyance in favour of the first defendant dated 19th December, 2006 and in the light of the same being pointed out in the reply to the interim injunction application, that it has become necessary to implead the Estate Investment Company and make further prayers after incorporating the particulars of the fraud. 4. The amendment application was contested by the original defendant no.1 and principal contention was that the facts as sought to be incorporated now were well within the knowledge of the original plaintiff. The application is belated and an after thought and filed with a view to prolong the hearing of the application for Interim Relief (Exh.5). -3- 5. The amendment application has been rejected by the impugned order and that is how the original plaintiff has filed this petition. 6. It is clear from a perusal of the impugned order that the learned Judge has gone into merits of the amended pleas. He is aware that such course is not permissible and yet he embarked upon an enquiry with regard to the legality and validity of the documents and maintainability of the suit. In the opinion of the learned Judge even if the amendments are granted, as prayed, yet, the petitioner/plaintiff having not pleaded and applied for specific performance of the agreement, he cannot succeed. 7. In my view, the learned Judge should not have made these wide and sweeping observations. It was his plain duty to consider as to whether the amendment application came within the four corners of the principles laid down and whether the same can be granted or not. Merely because there are certain pleas raised with regard to maintainability of the suit does not mean that the learned Judge was obliged to comment upon the same at that stage. The learned Judge was -4- aware of his limitation and in fact has observed in para 14 of the impugned order that the merits of the case cannot be considered while deciding the amendment application. He has precisely done that. In my view, when there is nothing pointed out with regard to changing the cause of action or that the party sought to be joined is not a necessary party, then, the learned Judge would have been well advised in allowing this application and by imposing costs on the petitioner/plaintiff. He would have been further well advised to take up for consideration the application for interim injunction. All this would have saved precious judicial time and even taken care of the apprehension of the first defendant. 8. In my view, the amendment application deserves to be granted. It is accordingly granted subject to the petitioner/plaintiff paying costs quantified at Rs.5000/- to the first defendant. The amendment to be carried out within a period of two weeks from today. Upon amended plaint being served, it would be open for the original defendant no.1 and newly added defendant to file their additional written statement within a period of 3 weeks from the -5- date of receipt of the amended plaint. 9. In no case, however, the learned Judge should postpone and delay the hearing of the application on Exh.5. If the plaintiff fails to carry out the amendment, then, the learned Judge to proceed with the matter as it is and endeavour and dispose of the application for interim injunction as expeditiously as possible and in any event by 15th April, 2008. The petition is disposed of. All pleas on merits of the amended pleas including on Limitation and maintainability of the suit are kept open. Needless to state that the learned Judge to proceed with the application for interim injunction even if the newly added parties fail to file their additional written statement or reply to the application. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)