:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 298 OF 2007 Shri Sainath Manohar Pawar ...Petitioner Versus General Manager, Ratan Motorss and Ors. ....Respondents Mr.U.B.Nighot, Adv. for the petitioners. Nipa Singh h/f. M/s. Mahesh Menon & Co. Adv. for the respondents. CORAM: S.C.DHARMADHIKARI, J. 7th January, 2008. P.C. P.C. P.C. : : : 1. Heard learned counsel for the parties. 2. The application for amendment of the plaint :2: :2: :2: made by the petitioner in his suit has been rejected. 3. The petitioner is litigating with a finance company who has granted some loan/financial benefit to the petitioner and sought repayment of the same. It also sought to enforce the Clause in the agreement by which the finance company could have taken physical possession of the subject vehicle. 4. Initially the plaint proceeds on the basis that the threatened action is contrary to law. Therefore, a permanent injunction be issued in favour of the petitioner. Subsequently, reliance was placed by the finance company on the Clause of the agreement which empowered them to take forcible possession of the vehicle. 5. Now, the petitioner wants to challenge that Clause in the agreement and therefore applied for amendment. The application for amendment was opposed on the ground that the pleas raised do not make out a case of the Clause being in any way vitiated. :3: :3: :3: 6. In my view, the Larned Judge was in error in going into the merits of the pleas with regard to the legality and validity of the Clause and the conduct of the parties. In my view, all that was necessary was whether amendment could have been permitted. While, it may be true that the petitioner is now challenging the subject Clause in the agreement, yet, merely because such a plea is allowed to be incorporated and relief claimed on that basis, does not mean that the controversy is decided finally on merits. Even if the plea is allowed to be raised, does not mean that the respondent/finance company is prejudiced straight-away. It can, by filing additional Written Statement highlight the conduct of the present petitioner, so also, support the subject Clause. The petitioner could have been permitted to carry out the amendment so as to obviate multiplicity of proceedings. 7. In such circumstances, the amendment application preferred by the petitioner in Reg.C.S.No. 242 of 2005 is allowed. Amendment to be carried out within a period of two weeks from today provided the petitioner pays costs quantified at Rs.5000/- to the :4: :4: :4: respondent no.2. On the costs being paid/tendered in the Trial Court and the proof produced, the plaint be allowed to be amended. The petitioner then to serve amended plaint and within a period of six weeks from the date of the receipt of the same additional Written Statement may be filed by the defendants. All contentions on merits of the controversy are expressly kept open and it would be open for the respondent no.2 to urge that no relief can be granted on the basis of the amended pleas, also, because the claim raised is belated and time barred. Petition allowed with the above clarifications and directions. sd/- *********