1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5882 OF 2009 Dr.Avinash Vishnu Joshi Petitioner versus A.M.Rote and others Respondents Mr.Ashutosh Gole for petitioner. Mr.Amit Borkar for respondents 1 and 2. Mr.Ajit Savagave i/by S.S.Patwardhan for respondents 3 and 4. CORAM : A.S.OKA, J. DATE : 15th February 2010 PC :- 1. On the oral prayer made by the learned counsel for the petitioner, the order of dismissal passed in the morning session is recalled and the petition is restored. By order dated 5th October 2009 notice for final disposal was issued. Accordingly, the writ petition is taken-up for final disposal. 2. The petitioner filed a suit for declaration and injunction. The suit is filed for enforcing the alleged right of the petitioner to enjoy the right of air and light as pleaded in the plaint. An injunction is prayed restraining the first respondent from making construction on his 2 property bearing CTS No.667/1 to 8 without leaving a passage of two feet which is on the western side of the property. Injunction is prayed restraining the first respondent from carrying out the construction on his property so as to infringe the right of the petitioner of receiving air and light through the windows in his property. 3. An application for amendment of the plaint was made by the petitioner. In the application for amendment it was stated that the application for temporary injunction made by the petitioner was rejected. An appeal was preferred by the petitioner before the District Court. It is stated that during pendency of the appeal, the first respondent has carried out the construction by leaving open space of width of only 1.5 feet. It is alleged that while carrying out the construction, the first respondent has made encroachment on the passage. Therefore, the amendment was prayed for incorporating relief of mandatory injunction of demolition of the structure. The said application has been rejected by the impugned order on the ground that the application has been filed nearly three years after the issues were settled and there was no explanation for such a delay. The Trial Court held that bar created by proviso to Rule 17 of Order VI of the Code of Civil Procedure, 1908 will apply. 4. Learned counsel for the petitioners submitted that according to 3 the case of the petitioner, construction was carried out and completed during pendency of the suit and, therefore, the amendment was necessary for incorporating the relief of mandatory injunction to avoid multiplicity of proceedings. The learned counsel for the first and second respondents submitted that the issues were framed on 10th March 2006 and the construction was carried out according to the case of the petitioner in the year 2006. He submitted that there is no explanation as to why application could not be made prior to 13th January 2009. He submitted that proviso to Rule 17 of Order VI of the said Code of 1908 is squarely applicable and no interference is called for. The learned counsel for third and fourth respondents also supported the impugned order. 5. I have given careful consideration to the submissions. The specific case made out in the application for amendment is that during pendency of the appeal preferred by the petitioner in the District Court challenging rejection of the application for temporary injunction, the offending construction was allegedly carried out by the first respondent. The Trial Court has observed that the issues were settled on 10th March 2006 and the aforesaid appeal was disposed of in the year 2006. It is not clear as to whether the said appeal was disposed of prior to 10th March 2006 or thereafter. In any case, there is no specific finding that the construction was completed by the first 4 respondent prior to 10th March 2006 when the issues were framed. Therefore, it cannot be said that the application for amendment could have been filed prior to 10th March 2006 which can be said to be the date of commencement of the hearing of the suit. It is true that the application could have been filed earlier but it cannot be said that it could have been filed prior to the date on which issues were framed. 6. The proposed amendment is necessary to avoid multiplicity of proceedings as the petitioner wants to pray for mandatory injunction for removal of construction allegedly carried out by the first respondent during pendency of the suit. The Trial Court ought to have allowed the application by directing the petitioner to pay costs to the first and second respondents. 7. Hence, I pass following order :- A) The impugned judgement and order dated 23rd February 2009 is quashed and set aside; B) The application at Exhibit-72 is allowed subject to petitioner paying costs of Rs.7,500/- to first and second respondents. The amount to be deposited with the Trial Court within six weeks from today; 5 C) The amendment shall be carried out within two weeks from the date on which amount of costs is deposited; D) It will be open for the respondents to file additional written statement to the amended plaint. It is made clear that the issue of bar of limitation is kept open; E) Writ petition is allowed in the above terms. (A.S.OKA, J.)