wp1748.11.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.1748/2011 Rajesh Shriramji Gulhane -vs- Buldana Urban Cooperative Credit Society Ltd. ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri S.U.Nemade, counsel for the petitioner. Shri R.L. Khapre, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : 19.09.2011. By this petition, the petitioner impugns the order passed by the trial Court on 26/10/2010 allowing an amendment application filed by the respondent. The respondent is the original plaintiff. A suit was filed by the plaintiff for refund of the earnest amount of Rupees Fifteen Lakhs with interest. It was the case of the respondent that the petitioner had entered into an agreement to sell his property to the respondent-plaintiff for a total consideration of Rupees Fifty Eight Lakhs Ninety Three Thousand Seven Hundred and Fifty. After the execution of the agreement dated 25/04/2008, the land in question fell within the area which was reserved for the truck terminus and the respondent could not have claimed a decree for specific performance of contract and hence, the respondent claimed a decree for refund of the earnest amount with interest. During the pendency of the wp1748.11.odt 2/3 proceedings, it is the case of the respondent that a communication was received by the respondent from the Assistant Director, Town Planning, Yavatmal that the reservation for the truck terminus stood deleted. On receiving the communication dated 17/09/2009 in regard to the deletion of the reservation, the respondent applied for amendment of the plaint by filing an application on 08/12/2009. By the proposed amendment, the respondent was seeking a decree for specific performance of the contract as according to the respondent, the land stood de-reserved as per the communication of the Assistant Director of Town Planning on 17/09/2009. The trial Court by the impugned order dated 26/10/2010 allowed the amendment application. The trial Court was justified in allowing the amendment application as the proposed amendment in the plaint was an outcome of the letter dated 17/09/2009 received by the respondent from the concerned competent authority informing about the de-reservation of the land. The respondent had based his claim for refund of the earnest amount on the basis of the agreement of sale and since the land stood de-reserved as per the communication dated 17/09/2009, the respondent desired to seek a decree for specific performance of contract as the same could not have been sought earlier in view of the reservation. The proposed amendment did not change the nature of the suit. In fact, it was necessary to allow the amendment application so as to avoid the multiplicity of wp1748.11.odt 3/3 proceedings. The submission made on behalf of the petitioner that the proposed amendment change the nature of the suit and the respondent was precluded from seeking a decree for specific performance of contract in view of the provisions of Order II Rule 2 of the Code of Civil Procedure is totally ill founded and is liable to be rejected. The order passed by the trial Court is just and proper and calls for no interference in exercise of the writ jurisdiction. The trial Court was justified in holding that the proposed amendment did not change the nature of the suit and it was also necessary for effectively deciding the controversy between the parties. The judgment reported in 2009 (5) ALL MR 559 and relied on by the counsel for the petitioner cannot be made applicable to the facts of this case. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE KHUNTE