1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1828 OF 2009 Vishant Anant Madhavi Prop.of M/s.Madhavi Traders ...Petitioner vs. Krishi Utpanna Bazar Samiti ...Respondent Mr.V.P.Sawant i/b Mr.Ajay Gadkari for the petitioner Mr.Milind Deshmukh for respondent CORAM :A.S.OKA,J. DATE : SEPTEMBER 1, 2009 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the respondents. Considering the narrow controversy involved in the petition, the same is taken up for final disposal at admission stage. 2 The petitioner filed a suit for declaration that the notice dated 22 nd March 2007 issued by the respondents was illegal. A payer has also been made for perpetual injunction in the suit for protecting the possession of the petitioner over the suit plot. 3 The case of the petitioner in the suit is that the respondents executed a lease in respect of the suit plot in his favour. The case made out by the petitioner is that he had applied on 29 th August 2006 for renewal of licence granted to him by the respondent to carry on the 2 business. It is stated in the plaint that the application for renewal was pending on the date of institution of the suit. Notice dated 22 nd March 2007 was issued by the respondent calling upon the petitioner to surrender the possession of the suit plot on the ground that the petitioner has not obtained renewal of the license. 4 An application for amendment was made for incorporating a challenge to the communication dated 18 th December 2007 by which the respondent communicated to the petitioner refusal to renew the licence. By the proposed amendment, it was sought to be contended that the respondent was under an obligation to renew the licence and in view of the order passed on an application for temporary injunction the respondent was not entitled to deny the renewal of licence. Further prayer in the application was for incorporating the prayer for mandatory injunction directing the respondent to renew the licence for the period from the year 2007 to 2012 and for incorporating consequential amendments such as payment of additional court fees etc. By the impugned order, the said application has been rejected. 5 The submission of the leaned counsel for the petitioner is that the trial court could not have gone 3 into the merits of the amendment proposed to be made by the petitioner. The learned counsel for the respondent submitted that a statutory remedy is available to the petitioner to challenge the order passed by the respondent declining to renew the licence. In view of availability of such remedy, the petitioner cannot challenge the action of the respondent of rejecting the renewal of licence by filing a civil suit. 6 I have given careful consideration to the submissions. It is a settled law that while deciding the application for amendment of pleadings, the court cannot go into merits of the proposed amendment. During the pendency of the suit filed by the petitioner, he received a communication from the respondent by which application made by the petitioner for renewal of licence was rejected. The contention which is sought to be raised by the amendment is that the respondent was under an obligation to renew the licence in view of lease granted by the respondent in favour of the petitioner for a period of 31 years effective from the year 1997. The second contention sought to be raised was that in view of order of injunction passed by the trial court, the respondent was not entitled to reject the application for renewal. 7 The challenge in the suit is to the notice issued on 4 the ground that the petitioner has not obtained renewal of licence. Considering the prayer in the suit, the proposed amendment will not change the nature of the suit. Whether the Civil Court has jurisdiction to grant relief of mandatory injunction directing the respondent to renew the licence is a question which will have to be decided at appropriate stage. The prayer for amendment cannot be denied on the ground that a remedy of preferring a statutory appeal is available to the petitioner. 8 In the circumstances, the learned trial Judge has committed an error by rejecting the application for amendment on the ground that a remedy of preferring a statutory appeal is available to the petitioner. Hence, amendment ought to have been allowed. After amendment is allowed, the respondent can always file additional written statement raising the contention of bar of jurisdiction. 9 Hence, I pass the following order i) Impugned Judgment and order is quashed and set aside and application made by the petitioner at Exh. 16 is allowed. ii)The petitioner will carry out amendment within a 5 period of two weeks from the date on which the writ of this order is received by the trial court. iii)It will be open for the respondent to file additional written statement within 8 weeks from the date on which the amended copy of the plaint is served. iv)By filing additional written statement, the respondent can raise a contention regarding bar of jurisdiction. All contentions including the contention of bar of jurisdiction are expressly kept open. v) Writ Petition is allowed in above terms. JUDGE