1 WP-584-1032-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 584 OF 2010 ALONG WITH WRIT PETITION NO. 1032 OF 2010 WRIT PETITION NO. 584 OF 2010 Shri Raj Developers ) registered partnership firm having its ) office at 118, Agrawal Trade Centre, ) Plot No.62, Sector-11, C.B.D. Belapur, ) Navi Mumbai, Through its partners ) 1. Shri Hansraj Manji Singhani ) Age/57 occu: Business ) 2. Shri Balwant Chhagan Patel ) Age/45, Occu: Business. ) 3. Shri Ratnashi Manji Singhani, ) Age/50, Occu: Business. ) 4. Shri Purushottam Manji Singhani ) Age/52, Occu: Business. ) 5. Shri Raju Hansraj Singhani ) Age/27, Occu: Business. )..Petitioners (Orig. Plaintiffs) Vs. 1. Appa Bapu Patil ) Age/65, Occu: well to do. ) 2. Shri Sadashiv Ganpat Patil ) Age/50, occu: Well to do. ) 3. Vinayak Ganpat Patil ) 2 WP-584-1032-10.sxw Age/48, Occu: Service. ) 4. Smt. Kusum Kashinath patil ) Age/30 yrs. occu: Household. ) 5. Smt. Neera Laxman Phadke ) Age/35, occu: Household. ) 6. Smt. Bebitai Namdeo Phadke ) Age/34, Occu: Household. ) 7. Smt. Dhondibai Ganpat Patil ) Age/75, occu: Household. ) 8. Shri Keshav Bapu Patil ) Age/65, occu: Well to do. ) 9. Smt. Raghubai Savlaram Patil ) Age/62, occu: Household. ) 10. Smt. Chandrabai Lahu Mhaskar ) Age 40, occu: Household. ) 11. Smt. Mandabai Lahu Mhaskar ) Age/38, occu: Household. ) 12. Smt.l Chhabibai Jagan Palekar ) Age/67, occu: Household. ) Nos. 1 to 12 R/o. Tembhade ) Tal/Panvel, Dist. Raigad. ) 13. Shri Sanjay S. Bhosale ) Age/42, occu: Business ) R/o. 303, A-Wing, Caliber ) Apartments, Ganpat Naka, Poval ) Road, near Shahbaj Village, ) Belapur, Navi Mumbai. ) 14. Manager/Management (City ) Service), CIdCO, 1st floor, Land ) 3 WP-584-1032-10.sxw Division Cidco Bhavan, C.B.D. ) Belapur. ).. Respondens WITH WRIT PETITION NO. 1032 OF 2010 Shri Raj Developers ) registered partnership firm having its ) office at 118, Agrawal Trade Centre, ) Plot No.62, Sector-11, C.B.D. Belapur, ) Navi Mumbai, Through its partners ) 1. Shri Hansraj Manji Singhani ) Age/57 occu: Business ) 2. Shri Balwant Chhagan Patel ) Age/45, Occu: Business. ) 3. Shri Ratnashi Manji Singhani, ) Age/50, Occu: Business. ) 4. Shri Purushottam Manji Singhani ) Age/52, Occu: Business. ) 5. Shri Raju Hansraj Singhani ) Age/27, Occu: Business. )..Petitioners (Orig. Plaintiffs) Vs. 1. Appa Bapu Patil ) Age/65, Occu: well to do. ) 2. Shri Sadashiv Ganpat Patil ) Age/50, occu: Well to do. ) 3. Vinayak Ganpat Patil ) Age/48, Occu: Service. ) 4. Smt. Kusum Kashinath patil ) Age/30 yrs. occu: Household. ) 4 WP-584-1032-10.sxw 5. Smt. Neera Laxman Phadke ) Age/35, occu: Household. ) 6. Smt. Bebitai Namdeo Phadke ) Age/34, Occu: Household. ) 7. Smt. Dhondibai Ganpat Patil ) Age/75, occu: Household. ) 8. Shri Keshav Bapu Patil ) Age/65, occu: Well to do. ) 9. Smt. Raghubai Savlaram Patil ) Age/62, occu: Household. ) 10. Smt. Chandrabai Lahu Mhaskar ) Age 40, occu: Household. ) 11. Smt. Mandabai Lahu Mhaskar ) Age/38, occu: Household. ) 12. Smt.l Chhabibai Jagan Palekar ) Age/67, occu: Household. ) Nos. 1 to 12 R/o. Tembhade ) Tal/Panvel, Dist. Raigad. ) 13. Shri Sanjay S. Bhosale ) Age/42, occu: Business ) R/o. 303, A-Wing, Caliber ) Apartments, Ganpat Naka, Poval ) Road, near Shahbaj Village, ) Belapur, Navi Mumbai. ) 14. Manager/Management (City ) Service), CIdCO, 1st floor, Land ) Division Cidco Bhavan, C.B.D. ) Belapur. ) 15. M/s. Krushna Enterprises ) 5 WP-584-1032-10.sxw a Partnership Firm, through ) its partner Shri Shailesh R. Patel, ) occu: Business having office at ) 122/123, Growmore Towers, ) Plot No.5, Sector-2, near Siemens ) Building, Kharghar, Navi ) Mumbai 410 210. )..Respondents Mr. Prasad S. Dani,Advocate, for the petitioners. Mr. N.V.Walawalkar, Senior Counsel, i/b. Jeetendra Sachdev, Advocates for the respondents Nos. 1 to 12. Shri V.A.Thorat, Senior Counsel a/w. Bipin Joshi i/b. Sachin Tambhat and Vinod Bade, Advocates, for respondent Nos. 13 & 15. CORAM: J.H.BHATIA,J. DATE : 5th October, 2010. JUDGMENT : 1. Leave to amend and implead defendant No.15 as respondent No.15 in the Writ Petition. Amendment be effected immediately. Learned Senior Counsel for respondent No.15 waives notice. 2. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties. 3. The petitioners had filed Special Civil Suit NO.11/2008 for specific performance of certain agreement against defendant Nos. 1 to 14. They also applied for temporary injunction restraining the defendants from making any 6 WP-584-1032-10.sxw development or construction on the suit property. The application for temporary injunction was rejected by the trial Court. Appeal against that was also dismissed. The petitioners filed Special Leave Petition before the Supreme Court which was also rejected. It was consistently held that the suit filed by the plaintiffs is not for specific performance of contract for sale of the property but only for enforcement of an agreement for development of property belonging to some of the defendants. After that, the plaintiffs filed an application for amendment in the plaint and sought to add defendant No.15, who is respondent No.15 before this Court, as defendant No.15 had entered into certain contract with defendant Nos. 1 to 6 and 13 about the same property. They also sought to bring on record certain events which had taken place prior to the agreement dated 11.6.2006 and certain events which had taken place later on. They also sought to add a prayer for damages. Simultaneously, they also made an application under Sec. 151 CPC seeking direction to the newly added defendant No.15 not to create any third party interest and to maintain status quo. 4. Both these applications were opposed by the defendants. 5. The trial Court rejected the application under Sec. 151 on the ground that the plaintiffs were trying to get same relief which they had failed to secure 7 WP-584-1032-10.sxw earlier and in respect of which the Supreme Court had also held that they are not entitled. The trial Court also rejected the prayer for some of the amendments, while allowed to amend the plaint so as to add the defendant No.15 as well as a prayer clause seeking compensation. The plaintiffs have filed Writ Petition No. 584 of 2010 against rejection of amendment, while Writ Petition No.1032 of 2010 is filed challenging rejection of application under Sec.151. 6. As the petitioners were not granted temporary injunction against the original defendants and the appeal was dismissed by this Court and the SLP was also dismissed by the Supreme Court, they cannot get same relief in the form of an application under Sec.151 against the respondent No.15, who entered into the picture as a result of subsequent contract with the original defendants. Therefore, I do not see any merit in the Writ Petition No.1032/2010. 7. The learned Senior Counsel for the respondent No.15 rightly pointed out that out of the proposed amendments, paras 4A to 4E and paras 8A and 8B contain facts which had allegedly taken place prior to the agreement dated 11.6.2006 entered into between the plaintiffs and some other defendants. He pointed out that by pleading those facts, the plaintiffs are trying to change the nature of the suit from the one for specific performance of agreement for 8 WP-584-1032-10.sxw development to the one for specific performance of contract for sale of the property. It would completely change the nature of the suit. These facts were well-known to the plaintiffs when the suit was filed and, therefore now they cannot be allowed to plead those facts. He however conceded that in para 4F, 8C and 8D, the plaintiffs have sought to introduce the subsequent facts. 8. After hearing the learned Counsel for the parties, in my considered opinion, the following directions will meet the ends of justice. (i) Writ Petition No.584 of 2010 is partly allowed and the impugned order below Exhibit 57 stands modified as follows :- Clause 2 of the impugned order shall read as follows :- The plaintiffs shall be permitted to amend and add paras 4F, 8C and 8D in the plaint by making appropriate changes in the serial numbers of these paragraphs. Rule made absolute accordingly. (ii) Writ Petition No.1032 stands dismissed. Rule discharged. (J.H.BHATIA,J.)