1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4335 OF 2009 M/s.Shah Oza Associates ...Petitioner vs. Digambar Pandurang Pawtekar & Ors. ...Respondents Mr.A.B.Avhad for the petitioner Mr.Jaydeep Deo for respondent nos.1 to 3 CORAM :A.S.OKA,J. DATE : SEPTEMBER 1, 2009 P.C. 1 Considering the narrow controversy involved in the writ petition, the same is taken up for final disposal at the stage of admission. The petitioner has been impleaded as the second plaintiff. The fourth respondent-trust is the first plaintiff. A suit was filed for possession against respondent nos.1 to 3. In the suit it was contended that under a will executed by the original owner Mr.Waikar, the fourth respondent trust was created which was later on registered under the Bombay Public Trusts Act,1950. 2 Originally the suit was filed only by the fourth respondent. An application was made on 22 nd March 2009 by the present petitioner under Rule 10 (2) of Order I of the Code of Civil Procedure,1908 praying that the petitioner may be added as a plaintiff. It was contended 2 that during the pendency of the suit, the fourth respondent (original plaintiff) sold and conveyed the suit property to the present petitioner. The said application was allowed by the learned Trial Judge by order dated 13 th July 2007. Thereafter, the present application at Exh.27 was filed by the petitioner. The said application was filed after the petitioner was impleaded as the second plaintiff. In the said application it was contended that on 22 nd March 2005, the Charity Commissioner accorded sanction for sale of the suit property in favour of the petitioner and accordingly on 18 th June 2005, a deed of conveyance was executed by the fourth respondent-original plaintiff in favour of the petitioner. The first amendment sought by the said application is for incorporating the paragraph 12-B for bringing on record the subsequent event of permission being granted by the Charity Commissioner and sale deed being executed in favour of the petitioner. The second amendment sought to be introduced by paragraph 12-b is for contending that the fourth respondent is not interested in the suit property and the present petitioner reasonably and bonafidely requires the suit property. Other amendments sought are for adding the reference to the petitioner in the plaint. 3 By the impugned Judgment and Order the said application was rejected. The learned Judge noted that 3 the submission of the respondent nos.1 to 3 was that the fourth respondent-original plaintiff has not complied with the conditions incorporated in the order dated 22 nd March 2005. 4 The learned counsel for the petitioner submitted that the respondent nos.1 to 3 have not challenged the order by which the petitioner was ordered to be added as the plaintiff. He submitted that after the present petitioner was added as plaintiff, the present application on which the impugned order has been passed was made for carrying out the consequential amendments to the plaint for pleading the facts for establishing the title of the petitioner to the suit property. He, therefore, submitted that the amendment ought to have been allowed. 5 The learned counsel for respondent nos.1 to 3 submitted that the learned trial Judge was justified in rejecting the prayer for amendment and hence no interference is called for. 6 I have considered the submissions. According to the case of the petitioner, the fourth respondent-trust (original plaintiff) has sold and conveyed the suit property in favour of the petitioner during the pendency of the suit. Though the suit has been numbered in the 4 year 2006, the same has been filed much earlier and there is no dispute that during the pendency of the suit, the Charity Commissioner accorded the sanction for sale of the suit property in favour of the petitioner and the conveyance was executed during the pendency of the suit. All that the petitioner has sought by the amendment was a leave to incorporate these subsequent events. The petitioner wants to plead the requirement to obtain possession of the suit premises. 7 Whether the petitioner has acquired title on the basis of the conveyance is the issue which can be agitated by the respondent nos.1 to 3 by filing the written statement or additional written statement at appropriate stage. The court can always examine whether the property could have been conveyed to the present petitioner. The objection raised by the respondent nos.1 to 3 was no ground to refuse the amendment. The learned trial Jude has noted that the fourth respondent has not filed any affidavit in support of the application. However, the fourth respondent did not oppose the said application. In fact, the fourth respondent had filed a suit by invoking the provisions of Order XXXIII Rule 1 of the Code of Civil Procedure,1908 and the court fees were paid by the petitioner after the petitioner was impleaded as a plaintiff. 5 8 Therefore, there was no justification for rejecting the prayer for amendment. The application made by the petitioner deserves to be allowed. 9 Hence, I pass the following order : i) Impugned Judgment and Order dated 12 th November 2008 is quashed and set aside and the application made by the petitioner at Exh.27 is allowed. ii)The petitioner will carry out the amendment within two weeks from the date on which the writ of this order is received by the trial court. iii)It will be open for the respondent nos.1 to 3 to file additional written statement dealing with the averments made in the amended plaint within 8 weeks from the date on which a copy of the amended plaint is served to the said respondents. iv)It will be open for the respondent nos.1 to 3 to raise all the contentions including the contention that the petitioner s title is defective. v) Writ Petition is allowed in above terms. JUDGE