1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 797/2009 (Nagpur Housing Agency Vs. Maroti C. Sathwane & ors.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. R.L. Khapre, Advocate, for the petitioner. Mr. A.S. Jaiswal, Advocate, for respondent nos. 1 and 2. Mr. S.P. Kshirsagar, Advocate, for the respondent no.3. Mr. A.M. Qazi, Advocate, for the respondent no.4. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 24 , 2009 . By this petition, the petitioner impugns the order passed by the 23rd Joint Civil Judge, Jr. Dn., Nagpur, on 20/3/2007, as also the order passed by the Civil Judge, Sr. Dn., Nagpur, on 17th of January, 2009, rejecting the amendment applications filed by the petitioner. The petitioner is the original plaintiff. An application was filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure for substitution of the word “execution” by the word “registration” in paragraph 4 of the plaint and also a suitable amendment to prayer clause so as to seek a direction against the defendant no.1 to make himself available at the office of the Registrar, for authentication of the Power of Attorney dated 12/11/2002. The petitioner also desired to add paragraph 12A to the plaint so as to plead facts pertaining to the execution of the Power of Attorney dated 12/11/2002. The application was, however, rejected by the trial Court by the impugned order dated 20/3/2007. The petitioner then filed an application for permission to amend the plaint, on 11/11/2008. By this 2 amendment application, the petitioner mainly desired to amend the prayer clauses in the plaint so as to seek the relief of specific performance of contract. Certain other facts were also stated in the proposed amendment in para 10A. The amendment application was seriously opposed by the respondents/original defendants and the trial Court, by the impugned order dated 17/1/2009, rejected the amendment application. I have heard the learned counsel for the parties and have also perused the applications, the replies filed thereto and the impugned orders. It is necessary to note that the petitioner/ plaintiff had filed a suit against the defendants for a decree of permanent injunction restraining the defendants from interfering with the possession of the plaintiff over the suit property. A permanent injunction was also sought against the defendant nos. 1 to 3 so as to restrain them from creating the third party interest in the suit property. It was the case of the petitioner that the defendant no.1 who had executed the Power of Attorney in favour of the plaintiff on 12/11/2002, had breached the terms of the agreement between the parties and had illegally entered into an agreement of sale with the defendant no.4. It was the case of the petitioner that the defendant no.3 was obstructing the construction and development work on the suit plot on the instigation of the defendant no.2. On the basis of the aforesaid pleas, the prayer of permanent injunction was made by the plaintiff. The defendant nos. 1 to 3 filed a joint written statement and specifically pleaded in paragraph 13 of the 3 written statement that if at all the plaintiff had entered into an agreement as alleged, he should have filed a suit for specific performance contract by filing the suit as per the valuation in the alleged agreement and should have paid the necessary court fee thereon. In spite of the fact that the defendant nos. 1, 2 and 3 had raised the aforesaid plea by filing the written statement on 3/1/2005, the petitioner had not filed the amendment application seeking the relief of specific performance of contract till 11/11/2008. On a perusal of the impugned order, it is clear that the trial Court has rightly rejected the amendment application dated 11/11/2008 at Exh. 75 by the impugned order dated 17th of January, 2009. It is necessary to note that the petitioner had not stated in the amendment application any reason to point out as to why the amendment application was not filed before the commencement of the proceedings or at the earliest opportunity. The plaintiff had merely mentioned in the amendment application that while drafting the case, the counsel for the plaintiff had not disclosed in the title that it was a suit for specific performance of contract and had also not affixed the proper court fee and since the defendants had raised an objection in that regard in the written statement, the amendment application was filed. It is also noted that the written statement was filed by the defendant nos. 1 to 3 as early as on 3/1/2005 and the amendment application was filed by the plaintiff on 11/11/2008. The trial Court rightly found that the petitioner was negligent in the matter and the petitioner had also failed to prove that it was not possible for the petitioner to raise the 4 plea before the commencement of the trial in spite of due diligence. On a perusal of the pleadings in the plaint and the proposed amendment, the trial Court found that the proposed amendment also changes the nature of the suit and rightly so. Since the original pleadings in the plaint did not pertain to the facts leading to the prayer for specific performance of contract, there was no question of allowing the amendment application seeking the said relief. The Court also considered the fact that the petitioner had filed his evidence on affidavit on 17/12/2007 and the amendment application was filed on 11/11/2008. The trial Court, on a consideration of the settled principles of law, rejected the amendment application by the impugned order dated 17/1/2009. The order passed by the trial Court on 17/1/2009 is just and proper and calls for no interference in exercise of the extraordinary writ jurisdiction. Though the order passed by the trial Court on 17/1/2009 is not liable to be interfered with, on hearing the counsel for the parties and on perusal of the impugned order dated 20th of Mach, 2007,it is clear that the trial Court was not justified in rejecting the amendment application filed by the petitioner at Exh. 44. On a perusal of the amendment application, it is clear that the amendment application would not change the nature of the suit and was also necessary for effectively deciding the lis between the parties. The trial Court was not justified in partly rejecting the amendment application as the said amendment application was filed by the petitioner before the commencement of the trial, on 4/12/2006. Since the pleadings in the proposed amendment application would not change the nature of the suit and was 5 necessary for effectively deciding the lis between the parties, the trial Court was not justified in partly rejecting the amendment application, without recording any reason, much less any cogent reason for doing so. In the facts and circumstances of the case, it is, therefore, necessary to allow the amendment application at Exh. 44. In the result, the writ petition is partly allowed. The impugned order dated 17/1/2009 is hereby maintained. However, the impugned order dated 20th of March, 2007 is hereby set aside, so far as it rejects the part of the amendment application. The amendment application at Exh. 44 is allowed. Order accordingly. No order as to costs. JUDGE RMP