1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.97 OF 2010 M/s.Arihant Builders & Anr. ...Petitioners vs. Om Arihant Co-operative Housing Society Limited & Others ...Respondents Mr.N.S.Rajeshirke for the petitioners Mr.Bharat Jhaveri for respondent nos.1 to 3 CORAM :A.S.OKA,J. DATE : JANUARY 12, 2010 P.C. 1 The petitioners who are the original 2 nd and 3 rd defendants by filing this Writ Petition under Article 227 of the Constitution of India have taken an exception to the order dated 18 th November 2009 passed by the trial Court on a Chamber Summons taken out by 1 st to 3 rd respondents (original plaintiffs) for amendment of the plaint and for impleading the parties. The 1 st respondent is a co-operative housing society. The 2 nd and 3 rd respondents are the members of the said society who have been impleaded as the plaintiffs in their personal capacity as also in their capacity of the representatives of the other flat purchasers. The present petitioners who are 2 nd and 3 rd defendants are builders and developers. The suit has been filed by the 1 st to 3 rd respondents for mandatory injunction directing the 1 st and 2 nd defendants to transfer and convey the shares held by the 2 nd defendant in respect of the Plot no.2 in favour of the 1 st plaintiff. There is a further direction sought against the 1 st and 2 nd defendants enjoining them to obtain the occupation certificate. Various other reliefs have been claimed in the suit. The case of the 1 st to 3 rd respondents made out in the plaint is that the 1 st defendant-society is holding several 2 plots which have been allotted to its members. The case of the plaintiffs is that the 2 nd defendant builder in its capacity as shareholder and member of the 1 st defendant society was allotted Plot No.2 owned by the 1 st defendant society. Thereafter, the 2 nd defendant (1 st petitioner) constructed a building and flat purchasers are occupying the flats in the building. The allegation in the plaint is that the 2 nd defendant did not co- operate for forming the 1 st plaintiff-society. In the plaint there is an averment that the 3 rd defendant bifurcated the Plot no.2 and Plot no.280 for the purpose of showing separate buildings. The case of the plaintiffs is that in August 2008, 2 nd and 3 rd defendants without their consent unauthorisedly demolished the boundary wall dividing the property on which the building of the 1 st plaintiff is situated and the adjoining plot. The allegation is that 2 nd 3 rd defendants are trying to use TDR in respect of the plot No.2 2 The chamber summons for amendment was taken out by the plaintiff. Various amendments have been sought by the chamber summons. In the affidavit in support of the chamber summons, it is stated that after filing of the suit, the plaintiffs came across certain documents. Certain documents were filed on record by the 2 nd and 3 rd defendants along with their affidavit-in-reply. The documents disclosed that the 3 rd defendant has been granted right of way from Plot No.2 to enable the residents of Om Arihant building situated on Plot no.280 to reach S.V.Road. Therefore, a relief is sought in respect of the access allegedly granted to the occupants of plot No.280. Therefore, a prayer is made for impleading the co-operative society formed by the purchasers of flats on the building on plot nos.280. By the amendment, the plaintiffs are seeking to challenge 3 the order of amalgamation passed by the Competent Authority in respect of the two plots. Therefore, various averments and reliefs are sought to be added by the plaintiffs. This is the amendment which is permitted under the impugned order. 3 The learned counsel for the petitioner submitted that the application for amendment is moved before the Trial Court on the basis of the documents which were in existence prior to institution of the suit. He submitted that the relief sought to be incorporated by amendment is barred by limitation. He submitted that the proposed amendment will change the nature of the suit. 4 As far as bar of limitation is concerned, the said issue always remains open notwithstanding the grant of amendment. Considering the nature of relief sought to be incorporated, it is obvious that to avoid multiplicity of the proceedings, the said reliefs have been rightly permitted to be incorporated. It must be noted here that the suit was filed by the plaintiffs in July 2009 and immediately thereafter, the present Chamber summons has been taken out in August 2009. Considering the fact that the suit is at a preliminary stage, the amendment has been rightly allowed by the trial court. Even if the amendment is allowed, all defences of the petitioner will remain open and all contentions can be raised by the petitioner while filing the written statement. 5 This is not a case where power of superintendence of this Court under Article 227 of the Constitution of India can be exercised. Subject to what is observed above, the Petition is rejected. All contentions of the petitioners are kept open. JUDGE