1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 4512 OF 2009. (Govind R. Maeshwari vs. Mathdipathi, Udasin Math, Bhiwapur) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DECEMBER 05, 2009. Heard finally Shri Markandeywar, learned counsel for the petitioner and Shri Wankhede, learned counsel for the respondent. The respondent – plaintiff filed a suit against the petitioner - tenant which came to be decreed and then the petitioner filed Regular Civil Appeal No. 427 of 2006 before the District Judge, Nagpur. One of the grounds in appeal was about maintainability of suit in view of provisions of Section 31 of Bombay Public Trust Act. As that ground was raised in appeal for the first time, the respondent – plaintiff moved an application in appeal and sought leave to amend the plaint to point out that the respondent was registered under Societies Registration Act (XXI of 1860) as amended by Punjab Amendment Act, 1957, the words “Unregistered Trust” appearing in the plaint were sought to be deleted. The petitioner objected to that amendment on the ground that the facts were within the knowledge of respondent and there was no reason to allow amendment of such 2 nature in appeal as it prejudiced his defence. By speaking order dated 16.07.2009, the appellate Court has granted that amendment. Shri Markandeywar, learned counsel for the petitioner – tenant contends that the very basis on which the suit came to be filed is undergoing change and in fact it constitutes withdrawal of admission as an important statutory right which was available to the petitioner is being taken away. He argues that the right was always available and it was only expressly pointed out in appeal memo. Shri Wankhede, learned counsel for the respondent states that the respondent Trust was always registered under the above mentioned enactment and that fact was not pointed out. He contends that after the express objection was raised, the fact has been pleaded. It is apparent that a ground which was available to present petitioner before the trial Court was inadvertently not raised and had it been raised there, the present respondent could have carried out amendment before the trial Court also. In these circumstances, the interest of justice demands that the order of amendment should be maintained. However, at the same time, the petitioner can while carrying out consequential amendment take appropriate pleas. It is made clear that merely because the respondent – plaintiff has carried out amendment, the right of present petitioner (tenant) to show that it was 3 not so registered as required by competent enactment or then the effect of or relevance of such registration, is not taken away. Subject to this, writ petition is disposed of. There shall be no order as to costs. JUDGE *GS.