caw825-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.825 OF 2011 IN WRIT PETITION NO.2531 OF 2005 Harkubai Sukrya Andher (Varli) and Ors. .. Applicants Versus German Frank Nilolav and Ors. .. Respondents Mr.Sunil Kumar with Rakesh Kumar i/by Legal Vision for the applicants. Mr.Kamat with Ashwin Kumar i/by M/s.Ashwin Mankad & Associates for respondent Nos.1,3, 4 and 5. Mr.R.M.Patne, A.G.P for respondent No.7. CORAM : S.C.DHARMADHIKARI, J. DATE : 20th JUNE 2011. P.C.: 1] Heard both sides. This is an application for amendment. Petitioners seek to introduce certain events which transpired after pendency of the petition and particularly after its dismissal in default and later restoration of the same to file. 2] The argument of Mr.Kamat appearing for respondent Nos. 1 to 5 is that firstly the petitioners- applicants seek to caw825-11.doc 2 incorporate certain allegations against the petitioners earlier lawyer and particularly of serious nature viz., of fraud and collusion with predecessor in title of respondent Nos. 1 to 5. Secondly, it is submitted that neither the Advocate nor the predecessor in title have been impleaded as parties to the proceedings. Thirdly, it is alleged that by the amendments the petitioners seek to introduce a distinct cause of action and a claim which is hopelessly time barred. For all these reasons, amendments should not be permitted to be carried out. 3] Having perused the civil application and the affidavit in reply I am of the opinion that merely because certain reliefs are sought to be claimed, on the basis of subsequent development, in the civil application, does not mean that this Court has granted those reliefs. The merits of the amendments are neither gone into at this stage nor decided. The amendments are on the basis that after the petition was admitted and interim orders made, it came to be dismissed in default. During the period of its dismissal in default and caw825-11.doc 3 subsequent restoration, third party rights have been purportedly created. Further, there are earlier events which remained to be incorporated. All necessary particulars and documents based upon which these rights are created, according to petitioners, need to be referred to and annexed. Similarly, they need to be impugned and based on them that appropriate reliefs are claimed. There is neither any change in the cause of action nor the reliefs claimed. The relief essentially is the same viz., quashing and setting aside the impugned orders of the authorities exercising powers under the Maharashtra Land Revenue Code, 1966 and particularly dealing with the lands in which rights have been created in favour of under privileged sections of the society and tribals. The acts of those trying to defeat the alleged rights are being impugned. Therefore, the objection that the entire cause of action changes has no basis. However, it is clarified that merely allowing the amendments does not mean that this Court has gone into or will go into genuineness or otherwise of the contents of the documents nor nullify the transactions which have been entered into on that caw825-11.doc 4 basis. Whether, the reliefs can be at all granted; whether this Court has jurisdiction to do so; whether this Court is the appropriate forum and assuming all this, whether the claim is within limitation or nor; are all matters which can be gone into irrespective of the fact that the amendments have been allowed. Each of the objections and contentions based thereon of the parties are kept open. Amendments are allowed subject to these pleas being kept open. 4] Once this aspect is taken care of, then, there need not be any apprehension for the contesting respondents that allowing of this application for amendment would relate back to the date of filing of the petition and that the Court will, therefore, have the authority to go into the merits of the amended pleas. 5] In the light of the above clarification and subject to the rights and contentions of the contesting respondents and without prejudice thereto, the civil application is allowed. The petitioners shall suffer the consequences, if they have not caw825-11.doc 5 joined necessary parties and the objection of respondents in that behalf is also kept open. 6] Amendments be carried out within two weeks from today. Amended copy of petition be served on the respondents within two weeks thereafter. S.O. four weeks. (S.C.DHARMADHIKARI, J)