-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.7454 of 2007 Shri Maruti Dhodiba Galave ..Petitioner vs. 1. Madar Mahatab Sheikh and another ..Respondents Shri T.S.Ingale for petitioner. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 4th February, 2008 4th February, 2008 4th February, 2008 P.C. P.C. P.C. 1. Although the office report does not indicate anything about the service but Shri Ingale states that he has filed the affidvit of service on 13th December, 2007 pointing out that the service is complete. Registered post A.D. is filed. 2. In these circumstances, he submits that the service is complete. The office report indicates filing of such affidavit and Regd. Post A.D. In such circumstances, the service on the respondents is complete. 3. The respondents are original defendants to a civil suit which is filed by the -2- petitioner/plaintiff. That suit is Reg.Civil Suit No.59 of 2003. The order under challenge is passed on an application for amendment moved by the petitioner (Exh.84). 4. By order under challenge delivered on 3rd September, 2005, the petitioner’s application has been partly allowed. Aggrieved by rejection of the amendment in part, that this writ petition has been filed. 5. I have perused the petition and annexures thereto including the impugned order. There is no doubt that the petitioner’s case is that he has become owner of the land by virtue of the sale deed in his possession. He, therefore, sought permanent injunction restraining the defendants from disturbing his alleged possession on the basis of the prior sale deed. A reference to the sale deed is already there in the pleadings. The date of the sale deed was erroneously mentioned as 7th February, 2003 which has been allowed to be corrected as 10th February, 2003. However, the later request of the petitioner to allow him to incorporate the relief of declaration of his title has not been granted. It is undisputed that the -3- respondents/original defendants have filed their written statement so also the counter claim. They plead that they have purchased 56 R out of Gat No.532 which is in North-West corner of this Gat on 17th February, 1997 from Tukaram Krishna Kshirsagar. Thus, the original defendants are basing their counter claim on the sale deed. The sale deed is subsequent in point of time and, therefore, it has become necessary for the petitioner to claim a declaration that he is the owner of the land on the basis of the prior sale deed dated 10th February, 2003 from the same vendor. 6. I see no justification for refusing such an amendment in as much as by mere grant of it neither the cause of action has undergone a change nor that the Court will be called upon to go into the matters which are de hors pleadings. The amendment application is not being termed as malafide either. In such circumstances, the amendment application ought to have been allowed completely. There is no reason to disallow the petitioner’s request to amend the pleadings so as to incorporate the prayer for declaration. 7. The Trial Court has gone into the merits of -4- the controversy at the stage at which the matter stands. That was clearly impermissible. In such circumstances, by keeping open, all contentions including the limitation and maintainability, amendment could have been allowed. The reasons assigned in para 8 are wholly unsatisfactory, erroneous and illegal. The learned Judge has failed to appreciate the distinction between changing the nature of the suit and introducing the new facts. 8. The amendment could have been applied for only after the written statement and the counter claim was filed. Hence, there was no question of applicability of proviso to Order 6 rule 17 of the Code of Civil Procedure in the peculiar facts of this case. In the result, writ petition succeeds. The order dated 3rd September, 2005 is set aside and instead it is directed that the application Exh.84 for amendment preferred by the petitioner/plaintiff is allowed in its totality. Amendment to be carried out within a period of two weeks from the date of receipt of copy of this order. Additional written statement, if any, within two weeks from the date of receipt of amended plaint. The suit to proceed thereafter in -5- accordance with law. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)