SRJ wp-3390-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3390 OF 2009 Shri Kamala Nahar Singh .. Petitioner V/s. Mrs. Kaushilya Devi wd/o. Chhangoor Singh & Others .. Respondents. Mr. Y.R.Dube, for Petitioner. Mr. C.R.Mishra, for Respondent No.4 CORAM : A.S.OKA, J. DATE : 29th MARCH,2010. P.C. : 1] Heard Learned Counsel appearing for the Petitioner. On 5 th February, 2010, this Court had ordered that the Petition will be taken up for final disposal at admission stage. 2] In the year 2007, the present Petitioner filed a suit for declaration that the 1 st to 3 rd Respondents herein have no right, title or interest in respect of the suit premises more particularly described in the plaint and the business carried on therein. A prayer for decree for permanent injunction was also made in the said suit. It is pointed out that an order of status-quo was passed by the Trial Court. A Notice of Motion was taken out by the Petitioner in which it was stated that in the reply of the SRJ wp-3390-09.sxw 2 1 st to 3 rd Respondents it is disclosed that they have sold the suit property to the 4 th Respondent herein in the year 2005. Therefore, the Chamber Summons for amendment was taken out praying for impleading the 4 th Respondent as a party Defendant. Amendment was also sought for incorporating additional prayers against the proposed Defendant. By the impugned order, the said Chamber Summons has been rejected. The Learned Trial Judge observed in the impugned order that it appears that on date of institution of suit, the Petitioner was not in possession of the suit premises. The Learned Judge observed that the proposed Defendant was developing the suit property as per the agreement entered into by the landlord of the property. The Learned Judge has observed that the suit premises have already been demolished and, therefore, the question of ingress and egress to the suit premises does not remain. The Learned Judge observed that there was a bar to the suit under the provisions of section 42 of the Slums Act. Lastly, it was observed that on the basis proposed amendment,the rights of the parties cannot be decided. 3] After having heard the learned Counsel appearing for the Petitioner and the learned Counsel for the 4 th Respondent, I find that the entire approach of the Trial Court is erroneous. The Learned Trial Judge was dealing with application for amendment of the Plaint under rule 17 of Order VI of the Code of Civil Procedure,1098 (herein above referred as the said Code). SRJ wp-3390-09.sxw 3 4] The prayer of the Petitioner was to add 4 th Respondent herein as a party Defendant and to claim certain additional reliefs in the suit. The reliefs sought to be added are of mandatory as well as prohibitory injunction. The proposed Defendant was sought to be added on the basis of the stand taken by the 1 st to 3 rd Respondents. This is not a case where the proviso to rule 17 of order VI of the said Code was applicable. The Petitioner being the original Plaintiff was a dominus litis and, therefore, he was entitled to implead the additional party to the suit. The Learned Trial Judge by going into the merits or correctness of the averments and prayers sought to be incorporated by way of amendment has committed an error. It is not permissible to do so at the stage of considering the application for amendment. The application for the amendment of the plaint has been rejected on totally erroneous and irrelevant ground. Hence, the Petition must succeed. 5] Hence, I pass the following order:- (i) The impugned order dated 9 th February, 2009 is quashed and set aside; (ii) The Chamber Summons No.386 of 2008 is made absolute in terms of prayer clause (a); SRJ wp-3390-09.sxw 4 (iii) Amendment shall be carried out within a period of two weeks from the date on which the writ of this order is received by the Trial Court. (iv) All contentions of the parties on the merits of the suit are expressly kept open. (v) The Petition is allowed in above terms. (A.S.OKA, J. ) SRJ wp-3390-09.sxw 5