1 wp 4516-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4516 OF 2010 Mr.Dennis Albert Gomes & Anr. ..Petitioners (Orig.Plaintiffs) vs. Shri Swaran Salaria & Anr. ..Respondents Mr.V.R. Dube for the Petitioners. Mr.Shreepad Murty i/b. Mr.Ashutosh Singh for Respondent no.9. Mr.S.D. Rairkar, AGP for Respondent Nos.3, 5, 6 and 8. CORAM : B.R. GAVAI, J DATED : FEBRUARY 4, 2011. P.C. : 1 Rule. Rule made returnable forthwith. Heard by consent. 2 By way of present petition, the petitioner challenges the Order dated 25th May, 2010, vide which the chamber summons taken out by the present petitioner for amendment to the plaint came to be 2 wp 4516-2010.sxw rejected. 3 The petitioners have filed S.C. Suit No. 481/2007 against one Swaran Salaria for declaration and injunction in respect of the suit property. Contending that the respondent no.7- defendant in 2009 tried to encroach upon the suit property, the chamber summons came to be filed so as to implead the respondent no.7 as defendant and for bringing on record the subsequent developments. The said chamber summons is rejected. Hence, the present petition. 4 Shri Dube, the learned Counsel appearing on behalf of the petitioner submits that the learned trial court has grossly erred in rejecting the application for amendment. He submits that the amendment, in question, was necessary so as to bring on record the subsequent developments and to implead the defendant no.7 who had illegally encroached upon the suit premises. 3 wp 4516-2010.sxw 5 Shri Murty, the learned Counsel for the respondent, on the contrary submits that the amendment application is rightly rejected. He submits that the petitioner has no concern with the property owned by the respondent no.7. It is submitted that the property which is owned and in possession of the respondent no.7 is a different property than the one which is mentioned in the plaint. He, therefore, submits that the respondent no.7 is being unnecessarily tried in the litigation by the petitioner-plaintiff. 6 Perusal of the chamber summons would reveal that the learned trial court while rejecting the chamber summons has gone into merits of the matter. The learned trial court has gone into the question regarding the co-ownership of the suit land and the other co-owners having transferred their share. The learned trial court has further gone to the extent of observing that 4 wp 4516-2010.sxw the plaintiff may not get relief in the suit. 7 It is settled law that at the stage of an application for amendment, the Court cannot go into the merits of the matter. In the present case, the issues are not yet framed. As such, the question of commencement of trial does not arise. It is to be noted that the petitioner is a dominus litus. If the plaintiff choses to implead an erroneous party, the plaintiff runs the risk of facing the consequences of mis-joinder of parties. The parties erroneously joined can always claim for the damages for being unnecessarily made to face the unwarranted litigation. 8 In that view of the matter, I find that the learned trial court has erred in rejecting the application. Shri Murty, learned Counsel for the respondent fairly concedes that instead of pendency of the present petition, he has no objection if the amendment is allowed without 5 wp 4516-2010.sxw prejudice to the rights of the parties and without further right of the defendant no.9 to claim for the damages against the plaintiff for mis-joinder. 9 In that view of the matter, the petition is allowed. The impugned order dated 25th May, 2010 is quashed and set aside. Chamber summons which is taken out by the present petitioner for amendment of the plaint is allowed. In the facts and circumstances of the case, no order as to costs. 10 Needless to state that the Court has not considered the merits of the matter and the learned trial court would decide the suit on its own merits. (B.R. GAVAI, J)