1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATEJURISDICTION WRIT PETITION NO.1799 OF 2009 M/s.Ellora Construction Company & Ors. .. Petitioners Versus Dev Darshan Coop.Housing Society & Ors. .. Respondents Mr.Shrihari Aney, Senior Advocate with Mr.Vineet Naik, Amit Yadkikar and Mohit Arora i/b. Desai Diwanji for petitioners Mr.H.S.S.Murthy for respondent No.1. CORAM : S.C.DHARMADHIKARI, J. DATE : 12th June 2009. P.C.: 1] This is a petition to challenge an order of amendment granted by the trial court. Original defendants are aggrieved by this order and, therefore, have invoked jurisdiction of this Court under Article 227 of the Constitution. 2] It is contended by Mr.Aney, learned Senior Counsel appearing for petitioners that if the prayers in the plaint are perused, so also the documents which are annexed thereto, it is apparent that the respondents – plaintiffs are praying for execution of conveyance deed in their favour in respect of the property consisting of land along with building known as Dev Darshan. He refers to prayer clauses (a), (b) and (c) of the plaint and contends that the claim of the respondents – plaintiffs is restricted to obtaining the conveyance. 3] However, when they failed in their attempt to get any interlocutory reliefs in the suit, they 2 have filed an amendment application and in the amendment application, they have included a portion of the property which admittedly does not form part of the agreement in favour of the flat purchasers or the coop.society. In such circumstances, the entire controversy undergoes a drastic change. Now the plaintiffs are laying their claim towards another property and their remedy is not to amend the plaint but to file a separate suit. 4] On the other hand, it is contended by Mr.Murthy that it is a suit for enforcing the obligation under the Statute viz., Maharashtra Ownership Flats Act. The suit is filed against the builder/ developer. Upon construction and development of the property, the flat purchasers, who have formed a cooperative society are entitled to conveyance of the land and open spaces, including parking area. Considering the apprehension, after the construction of Building B, plaint had to be amended. There is no question of the plaintiffs introducing an altogether new case or substituting original cause of action. In these circumstances, the entire petition is misconceived and, therefore, deserves to be dismissed. 5] At the outset, it must be clarified that the merits of the amended pleas need not be gone into and considered. It is for the trial court to express a final opinion on the same after the evidence is led by parties. 6] What is relevant to note is that in the application for amendment which was filed on 5th March 2008, before the trial court, it was contended by the original plaintiff that the suit is filed against defendant, builder and promoter. W.S. has been filed. However, during the pendency of the suit, the plaintiffs came to know about the conditions on which the Municipal Corporation permitted the construction of Building “B”. Since the plaint had no mention of Building “B” there was no averments made therein. It was only after plaintiffs came to know about the undertaking 3 given by the defendants while getting the plan amended for construction of Building “B” and occupation certificate being issued by the B.M.C., That they are apprehending that the existing structure occupied by the defendants would be demolished so as to make away for parking space or garden and further construction work. It is contended that the plan was sanctioned on the footing that entire area of the plot is possibly a parking area. 7] Reply affidavit was filed by the defendants and it is urged therein that the chamber summons is misconceived and not maintainable. It is contended that the undertaking given by the defendants to the B.M.C. is not unconditional and reference is made to condition No.3 in the Occupation Certificate granted on 31st May 1999. All other contentions deal with merits of the amended pleas. 8] When this application was placed before the court below, the settled principles have been referred and relying upon them, the Court held that the proposed amendment does not in any manner alter the cause of action. The plaintiffs are not introducing a new case nor are the pleadings inconsistent. The amendment is an extension of previous pleas. The only objection taken before the Court below appears to be that interlocutory applications were moved on the basis of the amended plea but no interlocutory relief was granted. Surely, that cannot be a reason to reject the amended plaint as is rightly observed by the court below. Once there is no alteration of the cause of action nor is the plaintiff setting up an inconsistent case, then, applying the liberal principles of granting amendment the court below committed no error in allowing the chamber summons. 9] I see no reason to interfere with the discretion exercised, which does not appear to be exercised arbitrarily or is vitiated otherwise so as to call for interference in my extra ordinary, discretionary and equitable jurisdiction under Article 227 of the Constitution of India. The petition is dismissed. However, no opinion is expressed on the merits of the controversy and all contentions 4 and pleas of both sides are kept open. Needless to state that merely because amendment application is allowed does not preclude the defendants from raising the plea regarding jurisdiction of trial court so also that the claim of plaintiff is barred by law of limitation. (S.C.DHARMADHIKARI, J)