1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1192 OF 2009 Kopalam M. Mogral & Ors. ..Petitioners. V/s. Globe Theatres Pvt.Ltd. & Ors. ..Respondents. Mr.P.K.Dhakephalkar, Sr.Counsel i/b. Mr.K.D.Jha for petitioners. Mr.D.S.Parikh i/b. Mr.P.M.Rustom Khan for Respondent No.1. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 9, 2009. DATE : FEBRUARY 9, 2009. DATE : FEBRUARY 9, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr.Parikh waives notice for respondent No.1. 3. As short question is involved, Petition is taken up for hearing forthwith by consent. 4. This Petition takes exception to the Judgment and Order dated 14th November, 2008 rejecting the Chamber Summons(Exh.8) taken out by the Petitioner for amendment of the Written Statement. The Court 2 below has opined that insofar as the paragraph-9-A, 9B, 9E, 9-F and 9-G are concerned, contents thereof are already found in the pleadings in the Written Statement. Once it is noted that the proposed pleadings are already part of the written statement, the amendment was only to elaborate and give particulars in the context of the said pleadings. There is no reason why that limited relief should not be granted. It would have been a different matter if by the amendment, the defendants were to introduce entirely new case. In the circumstances, reason for not permitting the amendment in terms of proposed paragraph 9-A, 9-B, 9-E, 9-F and 9-G by the trial Court is unsustainable and the same is overturned. Instead, the Petitioners/tenants are permitted to amend Written Statement by inserting paragraph-9-A, 9-B, 9-E, 9-F and 9-G, as reproduced in the schedule. 5. Insofar as paragraphs-9-C and 9-D are concerned, the Trial Court has observed that the contents thereof if accepted would be hit by section 116 of the Evidence Act. However, the Trial Court has not elaborated as to why the stand taken in paragraph-9-C and 9-D would be hit by section 116 of the Evidence Act. Argument of the Plaintiff is that the stand taken in this two paragraphs would result 3 in denial of title of the Plaintiffs in relation to the disputed property. Even on close reading of these two paragraphs, it is not possible to take the view that it amounts to denial of title as such. Indeed, by the proposed amendment the tenants want to assert that the Plaintiffs are not owners of the disputed property but were lessees of the Secretary of State Government. In other words, the Defendants are accepting the fact that the Plaintiffs have title in the suit property as tenants/lessees and not as owners. Thus understood, it is not a case of denial of title as such. In any case, the Plaintiffs have moved the Trial Court on the assertion that the Defendants are trespassers. If the Defendants are held to be trespassers, the fact that they have denied title of the Plaintiffs does not take the matter any further. 6. Taking any view of the matter, the order in question even with regard to not permitting the amendment in terms of paragraph-9-C and 9-D of the schedule appended to the Chamber Summons will have to be overturned. 7. Accordingly, this Petition succeeds, The impugned Judgment and Order is set aside. Instead 4 the Chamber Summons is made absolute in terms of prayer clause (b). Amendment be carried out within four weeks from today, failing which the Trial Court will proceed on the assumption that the indulgence shown in this order is recalled. 8. It is made clear that granting relief of amendment to the Defendants is not an expression of opinion either way on merits of the controversy, which will have to be decided by the Trial Court on the basis of evidence placed before it. No order as to costs. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)