1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7118 OF 2009 M/s. Hi-Tec.Farms and Foods (Poona) Ltd......... Petitioner versus Parimal Jaggannath Bhide & ors ........Respondent. Mr. V.P. Sawant adv. for the Petitioner Mr. Rajesh Patil adv. for the Respondents 1 to 3. Responent no.4 present in person. Mr. P.M. Jadhav adv.for respondent no.5. CORAM: A. P DESHPANDE, J. DATED : 01st December, 2009. P. C.: 1. Heard the learned counsel for the petitioner, the learned counsel for the respondent nos.1 to 3, the respondent no.4 who is present in person and the learned counsel appearing for the respondent no.5. 2. The original plaintiff has filed the present petition calling in question the legality of an order passed by the trial court below Exh.3 which goes to reject the application moved by the petitioner/plaintiff for amendment of the plaint. 3. The plaintiff instituted a suit claiming relief of perpetual injunction simplicitor. By the amendment application, the plaintiff is seeking to claim relief of specific performance of 2 agreement and declaration of title. The brief facts giving rise to the controversy are narrated herein below. 4. The plaintiff claims to have acquired right, title and interest in the property under a deed of assignment dated 3-6-2006 executed by the original defendant no.5. It is the case of the plaintiff that the suit property was exclusively owned by one Jagannath Bhide and he during his life time transferred the right, title and interest in the property in favour of the original defendant no.5 under a document dated 21-9-1980 which is titled as Taba pavti (possession letter). It is re-iterated that the said document is allegedly executed on 25-9-1980, however the same was not registered then and came to be registered as late as on 3-6-2006 i.e. after the death of late Jagannath Bhide. It is not in dispute that Jagannath Bhide expired in the year 1992 and the document has been registered by the defendant no.5 acting as a power of attorney holder of the deceased Jagannath Bhide, which is wholly impermissible. According to the learned counsel for the respondent nos.1 to 3, in the absence of a registered instrument, no right, title and interest in a immovable property is capable of being transferred having regard to the mandate of section 17 of the Registration Act. 5. According to the learned counsel for the petitioner, the trial court has wrongly placed reliance on a judgment of the Supreme Court in case of Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra reported in AIR 2004 S.C. 4342 which lays down that doctrine of part performance is only available to a transferee, in 3 pursuance of agreement to sale and a third party who had no privity of contract with owner cannot avail of the same. In the facts of the present case obviously, the petitioner is claiming through the alleged transferee meaning thereby the original defendant no.5 and hence the petitioner’s application could not have been rejected by placing reliance on the ratio of the judgment of the Apex Court. As per the learned counsel for the respondent nos. 1 to 3 and the respondent who is appearing in person, so also the counsel appearing for respondent no.5, the trial court is very much justified in holding that the application for amendment was not bonafide and hence rightly rejected the same. After hearing the parties for quite sometime, the learned counsel for the petitioner and the respondent nos. 1 to 3 so also the respondent no.4 who is present in person, and the counsel appearing for the respondent no.5, are in agreement that the impugned order passed by the trial court rejecting the amendment application dated 6-1-2009 be quashed and set aside and the matter be remitted back to the trial court for fresh adjudication of the issue involved. In view of the concession made available by the learned counsel and the party in person, I do not propose to decide this petition on merit, however chose to dispose of the same by consent of parties. 6. In the result, the impugned order dated 6-1-2009 is quashed and set aside. The application for amendment filed by the petitioner shall stand restored to file. The trial court shall proceed to decide the said application in the light of the 4 observations made in this order after affording an opportunity of hearing of all the concerned, in accordance with the law. I hope and trust that the trial court shall decide the application within a period of six weeks from today. 7. Needless to mention that all contentions raised are left open to be addressed before the trial court. 8. Parties to act on an authenticated copy of this order. (A. P. Deshpande, J.)