1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8384 OF 2007 Amol Arvind Tupe .. Petitioner Versus Pune Municipal Corporation and Anr. .. Respondents WITH WRIT PETITION NO.8388 OF 2007 Dinesh Dnyeshwar Gogawale .. Petitioner Versus Pune Municipal Corporation & Anr.. Respondents Mr.H.V.Kode i/b. S.A.Sawant for petitioners Mr.R.G.Ketkar with P.M.Pethe for respondents CORAM : S.C.DHARMADHIKARI, J DATE : 12th December 2007. P.C. . These two petitions are by petitioners original plaintiffs who had filed a suit seeking perpetual injunction to restrain the respondent Corporation from demolishing the property 2 described in para 1 of the plaint. 2. Application for amendment made after evidence had concluded and the matter was posted for argument, has been rejected mainly on the ground of delay and the conduct of the petitioner plaintiff. 3. Petitioners submit before me that in the original plaint, the averment in para 9 is clear, inasmuch as there is a challenge to the notice as being contrary to law and against principles of natural justice and equity. In such circumstances, all that was requested by the amendment application is to amplify this plea and incorporate a prayer in the relief clause. Such an application could have been granted even in the teeth of the proviso to the amended C.P.C. This is an averment which is not made due to over sight. In such circumstances and when the proposed amendment would obviate any further 3 proceedings but would assist the Court in resolving effectively and completely, the controversy therein, it ought to have been granted. 4. Mr.Ketkar, on the other hand emphasises the fact that the petitioner plaintiff deliberately refused to attend the court to argue the matter. He was to begin the arguments. Evidence was complete but intentionally the plaintiff remained absent. Thereafter, he changed the Advocate and applied for amendment on 12th March 2007. The Court has proceeded in the matter inasmuch as it has called upon the Corporation to argue and the matter was at the fag end when this application was sought to be pressed. In any event, he submits that the suit notice which is of 15th October 2004 whereas the amendment application is of 12th March 2007 and if this Court clarifies that the amendment application will not relate back to the date of 4 the suit, then, atleast the Corporation can argue that no relief can be granted on the basis of the amended pleas. Such a clarification needs to be issued in the interest of justice. 4. This is a suit filed by a person who claims to have been informed by the Corporation that whatever structure has been put up by him is unauthorised and illegal and deserves to be demolished and would be demolished. When he comes to court challenging such an action, it was his plain duty to incorporate all pleas. The plaint may have been drafted in hurry and presented soas to prevent immediate demolition. However, three years is a period long enough as being available for any amendment. There is no explanation as to why the petitioner did not take any steps from October 2004 till March 2007 and proceeded with the plaint as it is. In such circumstances, I will not fault the trial court for dismissing the application on the ground of 5 delay. However, the trial court could have yet granted the amendment by compensating the Corporation. The plaintiff petitioner could have been saddled with costs and appropriate clarification issued inasmuch as it would have been in the interest of everybody concerned, if the Corporation is not vexed again with another round of litigation with regard to same notice. There is substance in the contention of Mr.Ketkar that the amendment being allowed, there is every likelihood of it being contended that the same relates back to the original date of institution. 5. In my view, the pleas in that behalf can be expressly kept open. It would be open for the petitioner plaintiff to urge that mere omission to incorporate the relief or prayer clause is not fatal and the bar contemplated by section 487(1)(b) of the B.P.M.C. Act would not be attracted. Equally, it would be open for the Corporation to urge that the amendment having 6 been granted today i.e. 12th December 2007 by this Court, it can only relate back to the date of application for amendment i.e. 12th March 2007 but would not enure to the benefit of petitioner plaintiff beyond that period or prior thereto. 6. Keeping all such pleas open for being raised petitioner may be directed to amend the plaint. Even the bar of limitation is specifically kept open for being raised. Considering the fact that the petitioner only seeks to incorporate a prayer clause and would not lead any further evidence or produce any documents, in the interest of justice and in facts peculiar to this case, the application made for amendment can be granted. However, parties to appear before the trial court on 8th January 2008 and proceed to argue the matter without seeking any adjournment. Prior to the said date and within a period of ten days from today, 7 amendment must be carried out, costs as directed and quantified at Rs.5000/- be paid and amended plaint be served on the defendant Corporation. If all this is done and compliance reported to the trial court, the petitioner would be permitted to rely upon the amended pleas, failing which this petition and amendment application both will stand dismissed without reference to Court. All contentions are expressly kept open. (S.C.Dharmadhikari, J)