1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4601 OF 2009 Santosh Kumar Sharma Petitioner versus Shyamsunder Thakur Prasad Pandit Respondent V.R.Tripathi for petitioner. A.c.Singh a/w Atul Singh, A.D.Yadav i/by D.R.Shah for respondent. CORAM : A.S.OKA, J. DATE : 21st July 2009 PC :- 1. This petition under Article 227 of the Constitution of India filed by the original defendant takes an exception to the order dated 12th November 2008 passed by the Trial Court permitting amendment to plaint. 2. The respondent-plaintiff filed a suit in the year 1989. Prayers (a) and (b) of the said suit read thus :- "a) That it be declared that the defendant had no right, title or interest of any nature whatsoever in the suit premises i.e. land admeasuring about 273.30 sq.meters or thereabouts bearing CTS No.429 (Part) 429/5 to 12 and 21, Survey No.330C(Pt) and bearing Municipal Ward No.(i) House No.P-6976/19/1, Quarry Road, (2) Temple with Kitchen, (3) Shop Structure No.P-6976(2)/19/AA Quarry Road, and (4) Shed of two rooms no.9 and 10 No.P-6976(1)/19/1A together well, W.S.Block etc. (b) That pending the hearing and final disposal of the suit, the defendant, his servants, agents and/or servants be restrained by an order and injunction of this Hon'ble Court from entering the suit premises and/or dispossessing the 2 plaintiff without due process of law. (c) Ad-interim relief in termks of prayer (b) above. (d) Cost of suit be provided for. (e) Any order relief as this Hon'ble Court may deem fit and proper." An application for amendment of the plaint was made for converting the prayer (b) as aforesaid into a prayer for perpetual injunction. The said amendment has been allowed by the Trial Court by the impugned order. The amendment has been allowed on the ground that there was inadvertent error on the part of the advocate. The Trial Court also recorded the statement of the respondent-plaintiff that the plaintiff will not lead any evidence. 3. The learned counsel for the petitioner pointed out that the application for amendment was moved not only after recording of evidence but after the petitioner completed his arguments. He submitted that the amendment was allowed contrary to proviso to Order VI, Rule 17 of the Code of Civil Procedure, 1908 as amended by the Code of Civil Procedure Amendment Act, 2002. He submitted that the learned Trial Judge has committed an error by holding that the averments made in the plaint show that the respondent intended to file a suit for perpetual injunction. He submitted that there were no such assertions in the plaint and there is no reference to "perpetual injunction or permanent injunction". He submitted that in a suit of the year 1989, amendment could not have been permitted in the year 2008 at a stage when the petitioner has completed his argument. He has placed reliance on a decision of the Apex Court in case of Ajendraprasadji N. Pande and another Vs. Swami Keshavprakeshdasji N. and others (2007-AIR- SCW-513) as well as judgement of this Court in case of Dharamsingh s/o Sardarsinghg Chabada Vs. Pritamsingh s/o Sardarsingh Chabada ([2007]6-Mh.L.J.-29). 3 4. The learned counsel appearing for the respondent supported the impugned order. He invited my attention to the application for review filed by the petitioner. He pointed out that in paragraph no.7 of the review petition following portion was added by hand "Defendant shall not go into appeal against the above order before the Hon'ble High Court". He pointed out that this aspect is suppressed by the petitioner while filing this petition. 5. I have carefully considered the submissions. Firstly it must be noted that the suit has been filed before coming into force of the amendment of the year 2002 to the Code of Civil Procedure, 1908. A perusal of the plaint shows that the substantive prayer is for a declaration that the petitioner-defendant has no right, title or interest of any nature in the suit property. It is asserted in the plaint that the petitioner-defendant has no right, title or interest in the suit property. In paragraph no.15 an apprehension is expressed that the petitioner was likely to dispossess the respondent. In paragraph no.16 it is contended that the petitioner- defendant has no right to dispossess the respondent and, therefore, an injunction be granted in favour of the respondent restraining the petitioner from dispossessing him. Thereafter there is another assertion that the petitioner was capable of dispossessing the respondent by hook or crook and if an injunction was not granted, the respondent will suffer irreparable harm. It is true that the respondent- plaintiff has not used the words "permanent injunction or perpetual injunction" but averments in the said paragraphs clearly show that the respondent intended to claim a relief of perpetual injunction. In the affidavit in support of the Chamber Summons for amendment the respondent has stated thus:- "At present the suit is at the stage arguments in the suit. Through oversight and mistake prayer (b) of the plaint has been worded in the manner as if it is a prayer of temporary injunction, instead of the one for a permanent order of injunction. The said mistake has occurred through inadvertence and has remained on record in that manner. At the stage of argument it was pointed out on the 4 maintainability of the suit that the suit is merely for declaration without asking for any consequential relief. It was intended always that prayer (b) be read as permanent injunction however the wordings of the prayer (b) have been wrongly mentioned as pending hearing and final disposal of the suit. This fact is required to be corrected in the record of the court and hence the application." 6. In the impugned order the learned Judge has noted the submission of the respondent that no further evidence will be necessary. After considering the averments in the plaint and in particular paragraph nos.15 and 16, the learned Trial Judge accepted the case made out that there was an inadvertent typographical mistake. In fact, the averments made in the plaint show that after claiming the declaration the respondent intended to claim perpetual injunction as a consequential relief. In the decisions which are relied upon by the learned counsel for the petitioner, rigours of provisions introduced by the amendment which was brought into force on 1st July 2002 have been considered. 7. Considering the aforesaid discussion it is not possible to interfere in writ jurisdiction with the discretionary order passed by the Trial Court. As a consequence of permitting the amendment, it will be open for the petitioner to file additional written statement and even to apply for recalling the witnesses examined by the respondent and to lead further evidence. The said permission will have to be granted by the Trial Court to the petitioner. As stated earlier, the respondent has stated before the Trial Court that no further evidence is necessary on his part. 8. Hence, I pass following order :- (a) Subject to what is observed above the writ petition is rejected. However, it will be open for the respondent to file additional written statement to the amended plaint within six weeks from the date on which the amended plaint is served; 5 (b) It will be open for the petitioner to apply for recalling the witness examined by the respondent. It will be open for the petitioner to lead such further evidence as may be necessary. (A.S.OKA, J.)