1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8339 OF 2009 Devram Baburao Chandorkar. .. Petitioner Vs Maharashtra Housing & Area Development Board & Ors. .. Respondents -- Shri R.D. Sawant for the Petitioner. Shri G.W. Mattos for Respondent No.1. Shri Praveen L. Singh for Respondent Nos.2 to 4. -- CORAM : A.S.OKA, J. DATE : 8Th January 2010. P.C: By an order dated 5th October, 2009, the Petition was ordered to be placed for final disposal at the admission stage. 2. The Petitioner is the original Plaintiff. The 1st Respondent is the original 1st Defendant and the 2nd to 4th Respondents are the 2nd to 4th Defendants. A suit is filed by the Petitioner for declaration that the transfer of rent receipt in respect of the suit tenement, more particularly described in the Plaint, in the name of 3rd Respondent under the Order dated 2nd February, 1996 is illegal and bad-in-law. A declaration is claimed that the 2nd to 4th Defendants have no right, title or interests to occupy the suit premises. A decree for possession is prayed for as against the 2nd to 4th Respondents. 2 3. The case made out by the Petitioner is that he was held as eligible for allotment of the suit premises. His contention is that by letter dated 20th February, 1990, the Chief Officer of the 1st Respondent had offered the suit premises to him on the terms and conditions recorded therein and subsequently the Petitioner has been accepted as the owner/tenant of the suit tenement. The case of the Petitioner is that he has been residing in the suit premises with his mother (2nd Respondent) and 3rd and 4th Respondents, who are his unmarried sisters. His case is that the relationship between his wife and the 2nd to 4th Respondents was not cordial and therefore, to buy the peace, the Petitioner decided to live separately. It is his case that after he shifted elsewhere, he used to visit the suit premises and used to stay along with the 2nd to 4th Respondents. It is his case that he used to hand over to the 3rd Respondent the amount of rent to enable her to pay the same to the concerned authorities. He stated that the order of allotment was allegedly passed in favour of the 3rd Respondent which is subject matter of challenge. 4. A Chamber Summons was taken out by the Petitioner for amendment of the Plaint. It appears that the suit was filed in April, 2008. The Chamber Summons was taken out in August, 2008. Amendment sought to be incorporated by the Chamber Summons was for addition of one paragraph and two prayer clauses. By adding Paragraph 6A, the Petitioner sought to challenge various documents such as Sale Deed dated 31st January, 1996, Declaration dated 30th December, 1991, Affidavit dated 28th December, 1998 3 and Receipt dated 2nd December, 1991 allegedly executed by him. Prayers for declaration were sought to be added as regards the alleged illegality of the said documents as well as the Order dated 2nd February, 1996. By the impugned order, the Chamber Summons has been rejected. Chamber Summons has been rejected on the ground that the averments made in the Plaint show that the Petitioner had an idea that some documents were in existence but the Petitioner avoided to state all the facts. The learned Judge noted that one of the documents is an unregistered Sale Deed of which valuation of the suit premises has been shown at Rs.1,20,000/-. The learned Judge opined that if the amendment incorporating the challenge to the said documents is allowed, the pecuniary jurisdiction of the Court will be ousted. 5. The learned Counsel for the Petitioner submitted that the amendment deserves to be allowed. The learned Counsel for the 2nd to 4th Respondents opposed the Petition by contending that the Petitioner was fully aware of the documents which are sought to be challenged by way of amendment. He submitted that the trial Court has recorded a finding that though the Petitioner was aware of the documents, he has chosen not to challenge the said documents. He submitted that the prayer for declaration which was sought to be added was clearly barred by limitation. He submitted that this is one more attempt on the part of the Petitioner to harass his old mother. The learned counsel appearing for the 1st Respondent also opposed the Petition. 4 6. I have carefully considered the submissions. It must be stated that the application for amendment has been moved within few months after filing the suit. The suit is at a preliminary stage. The case made out by the Petitioner in the Affidavit-in-support of the Chamber Summons is that the Sale Deed and the other documents were annexed to the Written statement of the 2nd to 4th Respondents and he became aware of the said documents only after filing of the Written Statement. 7. The contention of the Petitioner that he was not aware of the said documents will have to be tested on evidence. Since the suit is at a preliminary stage, amendment ought to have been allowed, obviously subject to law of limitation, inasmuch as, notwithstanding the grant of amendment, the issue of limitation always remains open to be agitated by the defendants. The amendment does not change the nature of the suit. But in view of the well settled law, the fact that if the amendment is allowed, it will oust the pecuniary jurisdiction of the Court is no ground to deny prayer for amendment. After the amendment is carried out, the trial Court will naturally be empowered to consider whether the valuation of the suit for the purposes of jurisdiction or the Court fee is proper and after considering the said aspect, the Court is bound to pass an appropriate order in accordance with the law. 8. In my view, the trial Court ought to have adopted a liberal approach while deciding the application for amendment especially when the same is filed within few months after the date of institution of a suit. The 5 amendment deserved to be allowed. Considering the fact that the Petitioner has dragged the 2nd Respondent, who is his old mother, the substantial amount by way of costs will have to be paid by the Petitioner to the 2nd Respondent. As suggested by this Court, a Demand Draft in the sum of Rs.15,000/- drawn in favour of 2nd Respondent has been handed over by the Petitioner to the counsel of 2nd Respondent. He accepts the same without prejudice to the rights and contentions of the 2nd Respondent. 9. Hence, the Petition must succeed and I pass the following order. (a) The impugned Order dated 18th July, 2009 quashed and set aside. (b) The Application for amendment ( Chamber Summons No.Exh.3 of 2008) is made absolute. (c) As stated above, amount of costs is already paid. (d) Amendment shall be carried out within a period of two weeks from the date on which the writ of the order is received by the trial Court. (e) All the contentions of the Respondents including the contention regarding bar of limitation are kept open. 6 It will be open for the Defendants to raise the said contentions by filing additional Written Statement. The same be filed within eight weeks from the date on which a copy of the amended Plaint is served to them. (f) After the Plaint is amended, it will be open for the trial Court to examine the valuation of the suit made in terms for jurisdiction and Court fees. The trial Court, therefore, will pass an appropriate order in accordance with law after hearing the parties. (g) The Petition is allowed in above terms. (A.S.OKA,J)