1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION No. 2567 of 2010 Late Puna Shravan Patil (died) through his legal heirs & others ...Petitioners Versus Shri Ashok Bapu Kondoni & aother ...Respondents ..... Mr. S,B, Yawalkar, advocate for the Petitioners ..... CORAM: S.S. SHINDE, J. DATED: 29th MARCH, 2010 PER COURT:- 1 This Writ Petition takes exception to the order dated 28th August, 2009 to the extent of allowing the amendment in Regular Civil Suit No. 469 of 2001 by the VIIth Joint Civil Judge, Junior Division, Jalgaon. 2. The learned counsel appearing for the petitioner would submits that, by way of filing suit in the year 2002, relief for declaration was sought. However, by way of amendment, the relief of recovery is 2 prayed for. According to the counsel appearing for the petitioner, the original suit was filed in the year 2002 and application for amendment was filed in the year 2008, when the examination in chief of the plaintiff was over and matter was at the stage of cross-examination. The learned counsel further invited my attention to the grounds taken in the petition. The sum and substance of the arguments of the counsel for the petitioner is that, the amendment would change the nature of suit as well as it would cause prejudice to the interest of the petitioner. Therefore, petition deserves to be allowed. 3. I have heard learned counsel appearing for the petitioner, perused the impugned Judgment and order passed by the Court below. The VIIth Civil Judge Junior Division, Jalgaon while allowing the application for amendment in para No. 9, has observed thus :- “ By way of proposed para No. 12 A(1), the plaintiff has also sought amendment in relief clause of the plaint and claim relief of recovery of earnest amount of Rs. 2,25,000/- along with 18% interest from 01-08-2000 and relief of mutation of charge of above said amount on the suit property. The defendants have contended that the said relief is barred by limitation on the date of filing of the present application. In the present suit the plaintiff has claimed relief of declaration that he is entitled to recover the earnest amount of Rs. 2,25,000/- from the defendants. If the entire pleading of the plaintiff in the plaint will be perused then one can safely say that in fact 3 the suit of the plaintiff is for the recovery of amount of Rs. 2,25,000/- though the suit was apparently appeared only to be for relief of declaration. It is now well settled that moffusil pleadings are not to be strictly construed. In proposed para 12 A (1) the plaintiff is only claiming the same relief of recovery of amount of Rs. 2,25,000/- in a clear and additional wordings. Thus the claim of refund of amount by way of proposed amendment can not said to be inconsistent or disruptive of the original claim about declaration of refund of earnest amount and nor there will be any question of such relief to be barred by limitation. Hence so far as relief of recovery of earnest amount of Rs. 2,25,000/- is concern, in my view the plaintiff is neither claiming any new relief nor taking any new plea so as to cause any prejudice to the defendants. But the claim of plaintiff about 18% interest on the said amount is not only the new relief but also apparently appeared to be barred by limitation on the date of filing of present application. The plaintiff ought to have claim such relief at the time of filing of the suit or at least within 3 years from the date of filing of the suit. Hence that part of proposed para 11 A(1) can not be allowed to be amended in the plaint.” The plain reading of para No. 9, reproduced here-in- above, would show that there is proper application of mind by the concerned Judge and he is conscious of the fact that, though the earlier relief was sought for declaration, it is well settled that the 4 moffusil pleadings are not to be strictly construed. The Court has considered the application for amendment consciously and in same paragraph so far as prayer of 18% interest is concerned, it is observed that, the same will cause prejudice to the original respondent i.e. the petitioner herein and also is barred by limitation. The Court has rejected the amendment of claiming 18% interest. Viewed from any angle, no case is made out for interference. Hence Writ Petition is devoid of any merits and same is rejected. ( S. S. SHINDE. J.) SDM* WP2567.10