1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 4821 OF 2009. Santosh Dinkarrao Deshmukh and others -: versus :- Mahavirprasad Shrinivas Agrawal and others Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : MARCH 30, 2010. Heard Shri M.V. Mohokar, learned counsel for petitioners/plaintiffs, learned A.G.P. for respondent nos. 2 and 3 and Shri A.V. Bhide, learned counsel for respondent no.4. Respondent no.1 has chosen not to appear though served. Shri Mohokar, learned counsel states that said respondent is defendant no.1 before the trial Court and there also it is not appearing. After hearing the parties it transpired that on 30.03.2009 this Court has passed orders in Writ Petition Nos. 3288 and 4802 of 2008 and permitted petitioners / plaintiff to move appropriate application within one month in view of the demolition of the suit premises. The petitioners accordingly moved application but in it they have also pointed out the facts discovered by them under Right to Information Act indicating that auction conducted 2 by respondent nos. 2 and 3 in favour of respondent no.4 was itself bad. That application for amendment vide Exh.79 was partly allowed by permitting the petitioners/plaintiff to add grounds in relation to demolition only. Its review was then rejected vide order passed below Exh.85 on 11.08.2009. Shri Mohokar, learned counsel argues that though High Court granted limited liberty in view of the subsequent knowledge, application for amendment to incorporate those facts was also moved and it could not have been rejected. Shri Bhide, learned counsel on the other hand states that respondent no.4 is auction purchaser and has deposited amount of Rs. 32.51 lakhs about three years back and he is put to serious loss. He further states that one of the petitioners infact participated in that auction. Lastly he contends that the challenge to auction on so called additional ground is also misconceived as it is barred by limitation. He points out that neither in plaint nor in proposed application there are any prayer clauses challenging said auction. He therefore states that effort is only to cause delay in disposal of the suit, thereby to frustrate the otherwise legal and valid purchase by respondent no.4. Learned A.G.P. appearing on behalf of respondent nos. 2 and 3 is also opposing the Writ Petition and supports the order passed by the trial Court. After hearing all the parties, it is apparent that this court has granted leave to petitioners/plaintiff to 3 amend his plaint because of subsequent event of demolition. This Court as also Trial Court cannot go into the merits of the amendment, but then the facts prima facie disclose that petitioners/ plaintiff got some information under Right to Information Act and because of that information they wanted to raise challenge also to the auction proceedings. Whether that challenge is within limitation or not, or whether it is open or not, are the questions which pertain to merits of the amendment and can be gone into by the trial Court at appropriate stage or while considering the objection thereto by other defendants. The same cannot be a ground to reject the amendment. However, here as rightly pointed by Shri Bhide, learned counsel, application for amendment at Exh.79 has not been drafted with due application of mind and hence proper application needs to be filed. Shri Mohokar, learned counsel states that the relevant prayer challenging auction proceedings can be allowed to be added by separate amendment, however, such piecemeal amendment would further prejudice the respondent no.4. In view of further material placed on record I am inclined to permit petitioners to file proper and comprehensive amendment in relation to part of amendment which has been rejected, seeking relief available to him in law. However, the same shall be subject to payment of cost of Rs. 30,000/- by petitioners / plaintiff to respondent no.4 before the Trial Court within a period of one month from today. If the costs are so paid and application for amendment is moved, the Trial Court shall consider that 4 application in accordance with law and pass fresh order on it. The trial Court shall not be prejudiced by any observations made by this Court in present orders and shall apply its mind independently to the controversy. Writ Petition is allowed in the aforesaid terms. Rule accordingly. JUDGE Rgd.