1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8593 OF 2009 M/s.Rajesh Paper Products & Ors. ...Petitioners vs. Empee Offset Pvt.Ltd. ...Respondent Mr.Madhav Jamdar for the petitioners Mr.R.S.Apte, Senior counsel i/b Mr.A.A.Garge for respondent no.1 CORAM :A.S.OKA,J. DATE : APRIL 20, 2010 P.C.: 1 Heard the learned counsel for the parties. The learned counsel for the parties were put to notice that an endeavour will be made to decide the petition finally at the stage of admission. 2 With a view of appreciate the submissions made by the learned counsel for the parties, it will be necessary to advert the facts of the case in brief. 3 The present petition under Article 227 of the Constitution of India has been preferred by the original 1 st to 3 rd defendants. The first respondent is the plaintiff and 2 nd respondent is the original 4 th defendant. A suit was filed by the first respondent for specific performance of the alleged agreement dated 10 th February 1996 in respect of immoveable property described in paragraph 1a and 1b of the plaint. An application was made by the present petitioners for amendment of the written statement. It must be stated here that the petitioners have filed a written statement-cum-Counter- Claim. The relief sought in the Counter-Claim is for a 2 direction to the first respondent-plaintiff hand over possession of the area of 4000 sq. feet which is more particularly described in the written statement. In the alternative, the petitioner prayed that if the Court was inclined to pass a decree for specific performance, money decree be passed against the first respondent in favour of the petitioner. By the proposed amendment, a prayer was made for adding 5 th respondent as a party defendant no.5. A prayer was made for adding clause (n) in paragraph 15 of the Counter-Claim and for correcting the prayer clause (b) of the original Counter-Claim. The said application was earlier allowed on 19 th January 2007 by the trial Court. However, while allowing the application, a prayer made for adding the defendant no.5 was not granted but it was directed that the proposed defendant be added as plaintiff no.2. The said order was challenged in this Court by the first respondent by way of writ petition. By the order dated 12 th January 2009, this Court by setting aside the order directed that the application shall be heard afresh. 4 The learned counsel for the petitioner submitted that the application for amendment has been moved in a suit filed in the year 1997 and therefore, the same will not be governed by the proviso to rule 17 of Order VI of the Code of Civil Procedure,1908. His submission is that the proposed amendment is not inconsistent with the Counter-Claim which is already incorporated. He pointed out that in the Counter-Claim, which is already filed on record, the first prayer is for directing the first respondent to hand over possession of area of 4000 sq. feet and the second prayer is for direction for payment of a sum of Rs.19,27,517/- to the petitioners by the first respondent as a condition of executing conveyance. He submitted that in view of what is sought to be 3 contended in the Counter-Claim, the proposed defendant will have to be added as a party. He placed reliance on the Rule 15 Order VIII of the said Code as amended by this Court in exercise of powers under section 122 of the said Code by a notification dated 30 th September 1966. 5 The learned counsel for the first respondent submitted that by adding Clause (n) after clause (m) of paragraph 15 of the Counter-Claim, a relief in respect of altogether a different property was sought to be introduced by the petitioner which is beyond the scope of the Counter-Claim. He submitted that in view of repeal of notification dated 30 th September 1966, the addition of parties cannot be permitted in the Counter-Claim. He submitted that proposed amendment will change the nature of the Counter-Claim. 6 I have carefully considered the submissions. As far as addition of party-defendant in the Counter-Claim is concerned, under Rule 15 of Order VII of the said Code, as amended by notification dated 30 th September 1966, the said prayer could have been considered. However, as noted by this Court in Judgment and Order dated 23 rd March 2010 in Writ Petition no.5420 of 2009, the said amendment made on 30 th September 1966 has been superseded on 5 th September 1983. Therefore, to that extent, the trial Court was justified in not permitting the amendment. However, it will be open for the petitioner to adopt appropriate proceedings as against the proposed defendant. 7 Clause (n) which is sought to be added by the amendment reads thus : (n)These defendants say that to complete the 4 transaction as per the offer dated 20/11/1995, the defendants have purchased the stamp of Rs.20/- in two numbers. Thereafter, on 26/2/1996 Advocate J.R.Mhalgi on behalf of the plaintiff forwarded a copy of the agreement for the adjacent land for approval. However, due to oversight, Advocate Mhalgi had written the area of the subject land as 7 R instead of 10 R. After receipt of the said copy of the agreement Defendants were insisting for 10R land and to pay the remaining consideration of the suit agreement. However, the plaintiff failed and neglected to honour commitment. During the said period, there was constant of defendant no.4 to deposit the remaining amount of the loan availed by these defendants. These defendants say that they were and are ready and willing to complete all the necessary formalities with respect to adjacent property which is more particularly described as under :.... 8 The contention which is sought to be raised is that there was an understanding between the parties on the basis of the offer dated 20 th November 1995. The case of the petitioners appears to be that the first respondent had agreed to convey adjacent land which is described in the schedule which is sought to be added by the proposed amendment. An averment was sought to be added that the petitioners are ready and willing to complete all formalities in respect of the said adjacent property. Therefore, it cannot be said that the petitioners are seeking to incorporate a relief in respect of the property which is not subject matter of the suit. 9 In paragraph 15 (m) of the Counter-Claim, the petitioners want to carry out amendment by substituting 5 the figure of Rs.11,000/- by amount of Rs.19,27,577/-. The last part of the amendment is for amendment of prayer clause (b) of the Counter-Claim for substituting the figure of Rs.21,39,517/- by Rs.19,27,517/-. 10 Perusal of the impugned order shows that while dealing with other part of the amendment, the learned trial Judge has entered into the merits of the amendment sought to be introduced. Save and except the amendment for adding a party and an amendment of prayer (b) by inserting word Defendant no.5, rest of the amendment ought to been allowed by the trial Court. The said amendment does not change the nature of the suit and Counter-claim and there is no attempt to withdraw admission. The prejudice which may be caused to the 1 st respondent could have been compensated by awarding suitable costs. Hence, the petition must succeed in part. The amount of costs is quantified at Rs.10,000/-. 11 Hence, I pass the following order : i) Impugned order dated 3 rd March 2009 is quashed and set aside. The application at Exh.196 is rejected in so far as prayer for adding defendant is concerned. The prayer for adding the words Defendant no.5 in the prayer clause (b) is rejected. However, rest of the amendment sought by the application is hereby allowed subject to the petitioners paying costs of Rs.10,000/- to the first respondent. The deposit of amount of costs with the trial Court on or before 18 th June 2010 will be treated as sufficient compliance with this order. Payment of costs will be a condition precedent. ii) On payment of costs within stipulated time, the 6 trial court will permit the petitioners to carry out amendment to the written statement-cum-counter claim. iii)It will be open for the first respondent to file additional written statement to the counter claim within a period of eight weeks from the date on which amended copy of the written statement cum Counter-Claim is served to the first respondent. iv)As observed earlier, remedy of the petitioner against the proposed defendant is kept open. v)Writ Petition is partly allowed in above terms. JUDGE